Ng and Migration Agents Registration Authority
[2003] AATA 1192
•21 November 2003
CATCHWORDS – MIGRATION AGENT’S REGISTRATION
– whether applicant is an Australian permanent resident – whether applicant is usually resident in Australia – decision affirmed.
Migration Act 1958 ss. 289, 290, 290A and 294
Migration Regulations 1994 r. 1.03
Income Tax Assessment Act 1936 ss. 6(1) and 25(1)(a)
Bankruptcy Act 1966 s. 43(1)(b)(i)
Executors of the Estate of Santha Thevy Subrahmanyam and Commissioner of Taxation [2002] AATA 1298, 51 ATR 1173
Hafza v Director-General of Social Security (1985) 60 ALR 674
Federal Commissioner of Taxation v Applegate (1979) 79 ATC 4307
Re Taylor; Ex parte Natwest Australia Bank Pty Ltd (1992) 37 FCR 194
Scargill v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2003] FCAFC 116
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44
Jebb v Repatriation Commission (1988) 80 ALR 329
Re Easton and Repatriation Commission (1987) 12 ALD 777
Re McGourty and Repatriation Commission (1988) 9 AAR 87
DECISION AND REASONS FOR DECISION [2003] AATA 1192
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2003/612
GENERAL ADMINISTRATIVE DIVISION )
Re PETER NG
Applicant
AndMIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 21 November, 2003
Place: Melbourne
Decision:The Tribunal affirms the decision of the respondent made on 8 May, 2003 and notified in a letter dated 21 May, 2003.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 10 June, 2003, the applicant, Mr Peter Ng, applied for review of a decision of the respondent, the Migration Agents Registration Authority (“MARA”), made on 8 May, 2003 and notified in a letter dated 21 May, 2003 to refuse his application for registration as a migration agent. MARA made its decision as it was not satisfied that Mr Ng was an Australian permanent resident within the meaning of s. 294 of the Migration Act 1958 (“Migration Act”) and r. 1.03 of the Migration Regulations1994 (“Regulations”).
At the hearing, Mr Ng was represented by Mr Hughan of counsel and MARA by its solicitor, Mr Fell. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence. Admitted on behalf of Mr Ng were his statement dated 16 August, 2003, statements by Mr Nazar Khan, Mr Christopher Young and Mrs Leong Sin May and MARA’s Information Sheet MARA 0103 (“Information Sheet”). Mr Ng gave oral evidence in support of his case together with his wife, Mrs Leong Sin May, Mr Young and Mr Khan.
THE ISSUE
The issue in this case is whether Mr Ng is an Australian permanent resident. Resolution of this issue requires resolution of the further issue of whether Mr Ng is usually resident in Australia.
BACKGROUND
There was no disagreement between the parties as to many of the facts forming the background to the issue that I must consider. Where they disagreed was upon whether or not those facts lead to the conclusion that Mr Ng is usually resident in Australia and so a permanent resident. In view of this and on the basis of the evidence, I have made the findings of fact set out in the following paragraphs.
Mr Ng was born in Singapore on 7 August, 1957. He has three brothers and two sisters and all but his youngest brother, who lives in Australia, live in Singapore. His mother was deeply religious and he and one of his siblings were sent to English Catholic schools for his primary and secondary education. The remaining children had a Chinese education. When he was growing up, Mr Ng did not feel close to anyone in the family and preferred the company of his friends. He always felt different from everyone else in the family.
Mr Ng’s father owned and operated his own business and, as he was the eldest in his family, supported several of his brothers by taking them into the business. Mr Ng was accepted as a student to study law in London before he was told by his mother that his father could not afford to support him there. Instead, he undertook his law studies at the National University of Singapore (“NUS”) and worked part-time to pay his own way rather than rely on his father. In this, he was breaking with age old Chinese tradition. At the age of 18, Mr Ng told his father to leave him out of his will and, instead, to make sure that he left enough money for his youngest brother to go to University.
Mr Ng first met his wife, Leong Sin May, late in 1982 after he had graduated with his law degree. She was then a third year Arts student at the NUS but had been born in Malaysia on 13 March, 1960. After completing her primary and secondary schooling at private Catholic schools in Malaysia, she first attended the Univeritis Sains Malaysia until she was granted a Teaching Bursary by the Singapore government. That enabled her to complete a BA Hons in English language and English literature as well as a post graduate Diploma in Education. She won awards as the Best All Round Student and the Rotary Gold Medal as well as being the valedictorian of the graduating class. Mrs Leong worked for some years as a teacher before being transferred to the Ministry of Education as an officer in the gifted programme with responsibility for teaching English. She left teaching after paying to free her from her eight year bond and that left her free to join Singapore Airlines as a trainer. Mrs Leong and Mr Ng were married in 1984 and Mrs Leong has since renounced her Malaysian citizenship. Her widowed mother and her siblings continue to live in Malaysia.
Mr Ng had practised in Singapore as a sole practitioner for nearly ten years when he began to feel burned out by the long hours. He and his wife considered migrating from Singapore and Mr Ng quickly warmed to the idea. They considered Canada, the United States of America and New Zealand but decided on Australia after they had made two exploratory visits. Their first visit took place in 1990 and lasted for five days. It was a visit to Melbourne where they visited Mr Christopher Young and his wife to ask them about life in Australia. In January, 1991, they visited the Gold Coast for two days as Mrs Leong had to fly there on business for Singapore Airlines for whom she worked at the time. They chose to live in Melbourne after considering many factors and “Melbourne came up with the correct answers on all counts” (Exhibit A, paragraph 15).
Mr Ng and Mrs Leong initially viewed their move to Australia as if it they were considering it as a place for their retirement. In that way, they felt, they would not be too disappointed if things did not work out as they hoped. With this approach in mind, Mr Ng told his clients that he was going to Australia temporarily so that he could undertake studies at the University of Melbourne for an LLM. He did undertake those studies. Admission to practise as a solicitor was relatively easy as he needed only to study and pass Constitutional and Administrative Law and to undertake the equivalent of six months of Articles. They had decided to approach Professor Carl Wood at the Monash Medical Faculty to assist them to start a family.
Mrs Leong applied for a Subclass 126 visa in early 1991 with Mr Ng as the secondary applicant. While they were waiting to hear the outcome of their application, they made an eight day trip to Melbourne in July, 1991. They wanted to see what it was like in winter. Their application was granted on 20 February, 1992. On 25 March, 1992, they made their initial entry to Australia and returned to Singapore. They came to Australia again on 9 April, 1992. On one of those trips, they bought a one bedroom apartment as an investment. They started to look for a house to buy as a home. Mr Ng bought that house when he travelled to Australia on his own in October, 1992. The purchase was settled in or about December, 1992. During that October, 1992 visit, Mr Ng also obtained Articles with a firm of solicitors.
On his return to Singapore from that trip, Mr Ng arranged with a friend to look after his firm in case things did not work out and they had to return from Australia. He and his wife moved to Australia on 24 February, 1993 in time for him to start his classes in Constitutional and Administrative Law at the University of Melbourne. They were able to move into their house almost immediately and Mr Ng began his Articles in the first week of March, 1993. Mrs Leong obtained a position with Ansett Australia as an Internal Training Consultant in its Learning and Development Department. She was its only Asian trainer. From that position, Mrs Leong established an extensive network of colleagues and business associates and she has maintained contact with those who became long-lasting friends.
Mr Ng returned to Singapore several times between 1993 and 1996. Two visits in April and September, 1993 were undertaken to attend to problems with his practice in Singapore. In November and the early part of December, 1993, he returned to Singapore again in order to close his practice.
Mr Ng joined the Victorian Morgan Car Owners Club in 1993 and he and his wife enjoyed many pleasant social outings with members of the club. He regularly attended its monthly meetings and always felt totally accepted even though he was, as he described it, “the one and only migrant member of the club” (Exhibit A, paragraph 66). He has maintained his membership and attended its Christmas barbeque in 1997.
Mr Ng was admitted to practice as a solicitor on 7 March, 1994. He had closed his practice in Singapore and he and his wife had sold their home in Singapore. By this time, their only assets in Singapore were shares in listed company worth, on Mr Ng’s estimate, less than $10,000. A few months after his admission, Mr Ng left the firm and practised as a sole practitioner undertaking, for the most part, property work for a mixture of Australian businesses and some overseas Chinese clients.
Mr Ng was elected as a committee member of the Chinese Chamber of Commerce Victoria (“CCCV”) for the year 1994-95. He quickly became very active in its affairs and gained a great deal of support. Subsequently, he became its Vice President in 1995-96 after what I understand to be a very unsettled period in the CCCV. Mr Ng feels that he has invested a lot of himself in the CCCV and has regained close ties with it and with many members of the Melbourne Chinese community. When the immediate past President of the CCCV died recently, Mr Ng flew to Melbourne for his funeral even though it was in the midst of the SARS epidemic. In 1999, Mr Ng attended the World Chinese Entrepreneurs Convention (“WCEC”) as the Singapore based representative of the CCCV. He did not attend as a member of the delegation from the Singapore Chinese Chamber of Commerce.
Mr Ng’s mother died during 1995. He had been estranged from her and had not spoken with her or the rest of the family since 1983. Having seen how his father, who was then in his 80s, had aged when he saw him in 1995, he decided to return to Singapore and to repair the damaged relationship by staying for a few years. Mrs Leong enjoyed life in Australia. She enjoyed living in a house as she had done in Malaysia but could not afford to do so in Singapore. She was reluctant to return to Singapore. Eventually, she agreed to return but made her husband promise that they would return once he had settled his family and business affairs and that they would return within five years of their departure. Shortly after they had decided to leave for Singapore, Mrs Leong discovered that she was pregnant. This made the decision to return to Singapore easier for her as she would have had to give up work anyway but it also made her more determined that their time in Singapore would be limited. She did not want her child to go through the pressures of schooling in Singapore. Mrs Leong made her husband agree to return to Australia so that their daughter, Sophie who was born in 1996, could start her schooling in Australia.
When he had decided to return to Singapore, Mr Ng attempted to enter a merger agreement with another solicitor. Under that agreement, he would receive a share of the fees paid by his clients to other solicitor and Mr Ng would continue to build his Australian practice by referring work to the merged firm in Melbourne. The agreement did not work out as he had envisaged and, when he did not receive a share of the fees, he ceased referring work to the firm.
Mr Ng said that he has not joined any social club since he returned to Singapore but became a member of the Australian Chamber of Commerce in Singapore in 1996. He has kept his Morgan motor vehicle but it is now stored in Singapore. Mr Ng had asked Mr Young if he would care for it while he was away but Mr Young was unable to do so.
Mr Ng and his wife and daughter returned to Singapore in 1996. Mrs Leong became an Australian citizen in that year but her husband did not. Their daughter is an Australian citizen. Mrs Leong also retained her Singapore citizenship. After living in rented accommodation for some time and finding that they had to move from one to another and that the moves were unsatisfactory for their daughter, Mr Ng and Mrs Leong decided to purchase an apartment in Singapore.
On the basis of Mr Ng’s evidence, I find that his financial resources have been depleted for various reasons and they do not presently have the means to send Sophie to the private school in which a place has been reserved for her since 1999. They remain hopeful of enrolling her in a private school in Melbourne in 2005 and her place in their chosen school is assured although they are exploring cheaper options for her schooling. Among those reasons are the economic situation in Singapore in recent years. Also relevant is that Mr Ng invested in a Tasmanian business in 1999. It failed in 2000 and incurred losses in the order of $200,000. As a result, he lost his investment and remains liable for a $100,000 personal guarantee that he gave in respect of the business. He had to sell his last Melbourne property and to close his last Australian bank account in 2000. Mr Ng still holds a Victorian driver’s licence and has private health insurance.
Unless Mrs Leong can find employment as well as her husband, they will not be able to afford the private school fees on one income. They have enquired whether Sophie could be accepted at the Australian school in Singapore but, as her father is Singaporean, she would only be accepted with the approval of the Ministry of Education in Singapore. Mrs Leong and Mr Ng have no expectation of receiving that approval even if they were to ask the Ministry for it. As things have turned out, they think that it is a good idea for Sophie to attend a school in Singapore for the first two years as this will help her to get a good grasp of Mandarin. Mrs Leong is currently working as a Vice President in Human Resources in a bank in Singapore.
THE EVIDENCE
Mr Ng said that he became a registered migration agent in 1994 as it gave him an opportunity to provide legal services in another area of the law. Previously, he had very little exposure to that area of the law.
Mr Ng said in his affidavit, “Having fought for my beliefs in the advancement of the local Chinese community I will have every intention of coming back to finish the job once I have the financial resources to allow myself to do so.” (Exhibit A, paragraph 53) After the Tasmanian business failed in 2000, he tried to find employment in Melbourne in 2001 so that he could have a job to return to in 2003 when his daughter began her schooling. At the time, he realised that it was more difficult for him to find employment as he was over 45 years of age. As he had previously found his practice as a sole practitioner extremely difficult, he decided to shift his area of practice. Although he had been a registered migration agent since 1996, he had not concentrated upon migration law to any great extent and had focused instead on litigation. Since 2002, he has ceased handling litigation work except for the odd matter and has spent most of his time on migration law. He sees migration law as the most likely source of income for him in Australia. It is not possible for him to maintain a litigation practice in Singapore as his clients, Mr Ng said, will not readily accept long absences from Singapore. As he has decided that he is unemployable in Australia, he has decided to develop a practice in migration law with some sort of a base in Singapore. Since the beginning of 2002, he has been moderately successful in building up that practice, he said. He has been successful to an extent at which he “… can now start seriously looking at starting up the practice in Melbourne and moving back” (Exhibit A, paragraph 90).
Mr Ng said that he has spoken with three different lawyers in Melbourne with a view to exploring various options so that he is able to have a fully functioning practice in Melbourne by the end of 2004. He has also been in contact with a former client, who is a property developer, about his plans to return to re-commence practice, and the developer received the plans “positively” (Exhibit A, paragraph 39). Whether he continues with his present law firm in Singapore depends upon the progress that he makes with his potential partners in Melbourne, he said. In his affidavit, Mr Ng said that if MARA:
“93. … were allowed to have its decision refusing me repeat registration as a registered migration agent affirmed it will mean that all my plans to return to live in Melbourne permanently will be ruined as it will deprive me of what was intended to be my main source of income.
94.Given that if MARA’s decision stands I will then be barred from being able to be registered for another 12 months after that, the MARA decision will prevent me from having any income from immigration law work until at least 14 Feb. 2004. It may be longer than that if you consider the time it takes for someone to become a registered agent and MARA’s known practice of not registering a newly arrived Permanent Resident.
95.The effect of the MARA decision for me will be that my family and I will not be able to return to live in Melbourne before end of 2004 and my daughter will not be able to start school in Year Three in 2005 as we had planned.
96.Given the uncertainty brought on my MARA’s stand I am forced to put most of my plans on hold until there is some certainty that I will still be able to practice immigration law when I return to live in Melbourne.
97.I have not abandoned altogether my plans but prudence dictates that I do not finalise any of my plans apart from my café business venture.
98.I am aware that if I remain outside Australia I can continue practicing immigration law without being registered. Indeed MARA has reminded me of this in declaring its decision to refuse me repeat registration.
99.However, precisely because I plan to return permanently to live in Melbourne within the next 18 months, MARA’s decision has caused enormous difficulties for me.
100.If my family were to go ahead and move back to Australia next year then I may be forced to live apart from my family simply because MARA’s decision means I can only practice immigration law outside of Australia. I have no wish to live apart from my family.
101.This, unfortunately, will be the result of MARA’s decision unless I choose to give up immigration law work until I am eligible to apply for registration later. (Exhibit A)
Mr Ng said that his ties with Australia are evident from the teams he supports. He continues to barrack for the Wallabies and the Socceroos and follows their matches on cable television. By way of contrast, he does not follow the sports as they are played in Singapore. He hopes to attend matches during the World Cup and particularly hopes to see the match between Australia and Ireland on 1 November, 2003.
Mr Ng said that he believed that he had stayed long enough in Singapore for his father to be happy and to accept his decision to return to Australia. Unfortunately, he and his family were unable to return to Australia in time for his daughter to start her schooling. He and his wife have begun to explore cheaper options for her schooling and are hopeful that they will be able to start her at a private school in 2005.
Mr Ng agreed that between 13 November, 2000 and 28 April, 2003, he had spent approximately 29 days in Australia. Apart from a trip each year to Malaysia to visit his wife’s family, his only travel outside Singapore is to Australia. In his applications for repeat registration lodged in January 2001 and 2002, he gave an address in Singapore when asked for his “residential address”. Mr Ng agreed that he had given the same address in his application dated 25 January, 2003 when asked for his “usual residential address”. In cross-examination, he said that he had done so because, at that time, his brother had not bought property but agreed that the address he had shown was his usual residential address.
Mr Ng said that he does not maintain a home in Australia at the moment because of his financial situation. He has now cleared most of the overdrafts that he had with banks in Singapore and is now in a position to consider another attempt at starting a business in Australia. The fact that he does not own property or have a bank account in Australia, he said, is not a matter of his choice but a matter that was forced upon him. Now that his finances have improved a little, he has decided to subscribe to 20,000 shares in Nasi Lemak Pty Ltd, which will operate an Asian café. The investment has cost him $20,000. Mr Ng sees his investment as giving him an opportunity to supplement his income “when … [he] return[s] shortly to Melbourne to live permanently”.
A fellow shareholder in Nasi Lemak Pty Ltd, Mr Nazar Khan, said that they had agreed upon their venture late in 2002 but Mr Khan had experienced difficulties in finding suitable premises. They had first met each other in 2002 when Mr Khan attended a migration seminar conducted by Mr Ng. Conducting the venture together was not his idea, Mr Khan said. Mr Ng had approached him saying that he wanted to join his venture in Melbourne and Mr Khan responded that he “was very much pleased”. He needed a partner who could teach him a thing or two about life in Australia. Mr Ng advised him about whom to contact and where to go.
A lease has now been signed and approval is being sought for the shop to be used as a café. Mr Ng has been seeking further funds as their funds have been eroded by the time that it has taken to find suitable premises. He has now found them and they will be contributed by a person who will become a third shareholder in the company. Mr Khan said that Mr Ng had told him quite clearly that he plans to return to live in Melbourne within the next two years. He expects Mr Ng to be present during the café’s first week of operation and he said that he needed him to be there as he cannot be in the front of house as well as in the kitchen. When it was suggested to him that Mr Ng would only be there for a week and then not for another twelve months, Mr Khan said that they would have to discuss it. It will fall on his shoulders in the meantime.
Mr Khan has had extensive experience in the food industry in Singapore and he sees Mr Ng as providing the knowledge and experience of Melbourne and particularly its Asian student community. Mr Ng has also provided legal and professional advice to him and not charged him. Mr Khan considered that it was unreasonable for anyone to think that Mr Ng is not a resident of Australia. He could not have been able to get the business to this stage without the help of a local resident such as Mr Ng.
Mr Ng said that he has always regarded Australian and, particularly Melbourne, as his home to which he “… will return permanently soon” (Exhibit A, paragraph 54). He regards himself as being in Singapore temporarily until such time that he is able to settle his family and business affairs. He said that his not becoming an Australian citizen was not his choice but one forced upon him by his choice of work place. Singapore does not recognise dual citizenship. Had he become an Australian citizen, he would not have been able to work in Singapore unless he had applied for a work visa. His application would have been refused as he would have been regarded as an Australian lawyer. Opportunities for Australian lawyers in Singapore are very limited, he said, and then only with one of the international law firms. Had he obtained Australian citizenship, he would have been required to renounce it in order to be issued with a practising certificate by the Supreme Court of Singapore. As he has had to earn a living by practising law in Singapore, he continued in his affidavit, he could not, until his permanent return to Australia, acquire Australian citizenship.
Mr Ng said that he and his wife had found the lifestyle in Melbourne most agreeable. Having worked in a stressful professional environment in Singapore, both valued the different approach to work in Australia where clients and employers respected their private time. Had he stayed in Singapore, he would not have had the opportunity to study for his LLM as the high cost of living would not have permitted him to take the time from earning an income.
Mrs Leong said that she had told her supervisor at the bank in Singapore that she will stay only another year. Consequently, she has been taken away from her line management duties and assigned a special project that will take her twelve months to complete. She has declined other offers of employment that she has received on the basis that she intends to return to Melbourne to live.
In his statement, Mr Young said:
“1. I have known Peter Ng since 1980 when we were both studying at the National University of Singapore. We were in the same dormitory, as well as the Catholic Students group in campus.
2.Sometime in 1993, Peter and his wife Sin May migrated to Melbourne, Australia.
3.I was pleased when he migrated to Melbourne and asked him to be the godfather of our first-born daughter, Lynette.
4.We would frequently visit each other’s home after Peter and Sin May’s arrival in Melbourne.
5.Then several years later in early 1996 Peter informed us that they were relocating back to Singapore.
6.I recall clearly that Peter told me at that time that they were only going to be in Singapore temporarily, and only due to work reasons, and would return to Melbourne.
7.Peter asked me whether I could garage one of his cars, a Morgan vintage, in my garage till he returned. At that time I declined, as both my wife & I were working and didn’t want the responsibility for someone else’ vintage car. He then explored the idea of commercial long-term storage.
8.Then when they discovered they were going to have a baby they informed us that they would want to bring their child back to Melbourne to start school when it was time.
9.Peter and Sin May left in mid-1996 but remained in touch with our family and visited us frequently when they returned to Melbourne, almost annually.
10.They visited us when both my second daughter and my son were born.
11.In the last few visits, his wife Sin May has been actively checking out schools for their daughter, as well as checking out housing and transport for that same reason.
12.I believe that he genuinely has the intention to return to live permanently in Melbourne.” (Exhibit C)
CONSIDERATION
Division 3 of Part 3 of the Act is concerned with the registration of individuals as migration agents. MARA is effectively required to register a person as a migration agent unless prohibited from doing so by a provision of that Division (s. 289(1)). Section 290 sets out the criteria of which MARA must be satisfied before it may register a person as a migration agent. If a person has been registered as a migration agent in the 12 months before making a further application to be registered, MARA must not register him or her unless satisfied that he or she has met the requirements for continuing professional development prescribed by the Regulations (s. 290A). In this case, MARA has not given any consideration to whether or not Mr Ng has met those requirements and neither have I but I note that Mr Ng states that he has done so.
Of particular relevance in this case is s. 294, which provides, in so far as it is relevant, that an “… applicant must not be registered unless he or she is …an Australian citizen … or an Australian permanent resident (within the meaning of the regulations) …or a New Zealand citizen who holds a special category visa”. As it is agreed that Mr Ng is not an Australian citizen, the only issue is whether Mr Ng is an “Australian permanent resident”. That expression is defined in r. 1.03 to mean:
“(b) … a non-citizen who, being usually resident in Australia, is the holder of a permanent visa.”
The expression “usually resident in Australia” is not itself defined.
Both Mr Hughan and Mr Fell referred to my previous decision in Executors of the Estate of Santha Thevy Subrahmanyam and Commissioner of Taxation [2002] AATA 1298, 51 ATR 1173. That case required the consideration of whether Dr Subrahmanyam had been a resident for the purposes of determining whether she had assessable income under s. 25(1)(a) of the Income Tax Assessment Act 1936 (“ITTA1936”) but the word “resident” was itself defined in s. 6(1) to include a number of persons but to exclude, among others, a person whose “usual place of abode” was outside Australia. The issue was whether Dr Subrahmanyam’s usual place of abode was in Singapore or in Australia. On their face, consideration of whether a person’s “usual place of abode is outside Australia” and whether a person is “usually resident in Australia” are different issues. In the course of my reasons, however, I referred to the ordinary meanings of the words “usual” and “resident” and the expression “usual place of residence” and “usual place of abode”. I referred also to a number of authorities including Hafza v Director-General of Social Security (1985) 60 ALR 674 (Wilcox J) and Federal Commissioner of Taxation v Applegate (1979) 79 ATC 4307 (Franki, Northrop and Fisher JJ) to which Mr Hughan and Mr Fell referred. Although I appreciate that I was considering a different issue in Executors of the Estate of Santha Thevy Subrahmanyam, the reference to a number of cases remains relevant in this context and I will reproduce those parts of the decision:
“… In having regard to the meanings of those words on their own, I am mindful that the meaning to be attributed to a word or expression can be affected by its context and that, as Lord Halsbury said in Mersey Docks and Harbour Board v Henderson Bros (1888) 13 AC 595:
“It certainly is not a satisfactory mode of arriving at the meaning of a compound phrase to sever it into its several parts and to construe it by the separate meaning of each of such parts when severed.” (pages 599-600, approved by Barton J in Lorimer v Smail (1911) 12 CLR 504 at 510)
Even so, it is useful to have regard to the meanings of the individual words and to the meanings attributed to the expression in other contexts before turning to its meaning in the context of the 1936 Act.
21. The word “usual” is defined, in so far as it is relevant, to mean:
“2 Ordinarily used; constantly or customarily employed, esp. in a specified capacity; ordinary. … 3 That ordinarily happens, occurs, or is to be found; such as is commonly met with or observed in ordinary practice or experience. …” (The New Shorter Oxford English Dictionary, 3rd edition, 1993)
“… 1. habitual or customary: his usual skill. …” (The Macquarie Dictionary, 2nd edition, 1991)
…
22. The words are used in the wider context of the definition of “resident” in s. 6(1) of the 1936 Act. That is a definition that, in so far as a natural person is concerned, is expressed to mean a person “… who resides in Australia”. The sub-paragraphs of paragraph (a) of the definition then go on to include persons who may, or may not, ordinarily be regarded as persons who reside in Australia. Therefore, it is necessary to look to the ordinary meanings of “reside” to set the sub-paragraphs in their context. In so far as they are relevant, they are:
“… b Dwell permanently or for a considerable time, have one’s regular home in or at a particular place. …” (The New Shorter Oxford English Dictionary, 3rd edition, 1993)
“… 1. to dwell permanently or for a considerable time; have one’s abode for a time: he resided in Box Hill. …” (The Macquarie Dictionary, 2nd edition, 1991)
23. Although not concerned with the expression “usual place of abode” but with the expression “usual place of residence” in the context of s. 103(1) of the Social Services Act 1947, the judgement of Wilcox J in Hafza v Director-General of Social Security (1985) 60 ALR 674 usefully canvasses a number of the earlier authorities considering both residence and abode. Both of those concepts are found within the definition of “resident” in s. 6(1) of the 1936 Act. Before turning to the particular context with which he was concerned, Wilcox J said:
“ There is a plethora of decisions, arising in various contexts but predominantly matrimonial causes and revenue cases, relating to the legal concept of residence. As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever. The concept was explained in a taxation case, Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR. 241 at 249, by Williams J:
‘The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.’
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place even involuntarily (see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248 and Keil v Keil [1947] VLR 383) a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place (Levene v Commissioners of Inland Revenue [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149) together with an intention to return to that place and an attitude that that place remains ‘home’ (see Norman v Norman (1969) 16 FLR 231 at 236). It is important to observe firstly, that a person may simultaneously be a resident in more than one place, - see the facts of Lysaght and the reference by Williams J to ‘a home or homes’ - and, secondly, that the application of the general concept of residence to any particular case must depend upon the wording, and underlying purposes, of the particular statute in relation to which the question arises. But, where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as ‘home’, a change of intention may be decisive of the question whether residence in a particular place has been maintained.” (pages 680-1)
24. Wilcox J referred to the case of Commissioners of Inland Revenue v Lysaght [1928] AC 234 (Viscount Sumner, Lord Atkinson, Lord Buckmaster and Lord Warrington of Cylffe; Viscount Cave LC dissenting). Mr Lysaght had been a resident of England for many years. In 1919 he partially retired and returned to live in the country of his birth, the Irish Free State. He retained a post as adviser to the English company of which he had previously been the managing director and went to England each month for a meeting with the directors. Mr Lysaght remained in England for about a week for consultations, stayed in a hotel and never took his wife. He had no business interests in Ireland except for the management of his estate. His bank account was maintained in Ireland although he had a small account in England. Mr Lysaght claimed exemption from certain tax on the basis that he was neither resident nor ordinarily resident in the United Kingdom. The General Commissioners, and later the Special Commissioners, decided that Mr Lysaght was both resident and ordinarily resident in the United Kingdom for each of two years of income but stated a case for consideration.
25. Although dissenting from the majority, the speech of Viscount Cave LC and that of Viscount Sumner highlight fundamental tensions in considering the concept of “resident” and “ordinarily resident”. In the case of Levene v. Commissioners of Inland Revenue[1928] AC 217, Viscount Cave had said:
“The expression ‘ordinary residence’ is found in the Income Tax Act 1806 and occurs again and again in the later Income Tax Acts, where it is contrasted with the usual or occasional or temporary residence; and I think that it connotes residence in a place with some degree of continuity and apart from accidental or temporary absences.” (page 225)
In Lysaght, Viscount Cave said:
“… on the view which in that case I have taken as the meaning of those expressions, there appears to me to be no reason whatever for holding that the respondent is resident or ordinarily resident in this country. It is true that he comes here at regular intervals and for recurrent business purposes; but these facts, while they explain the frequency of his visits, do not make them more than temporary visits or give them the character of residence in this country. That he has a small account at a bank in Bristol – doubtless for use during his visits to this country – and a club in London to which he hardly ever goes, appear to me to be trivial circumstances which cannot affect the decision. If the respondent is held to reside here and to be taxable accordingly, there would appear to be no reason why those many foreigners who periodically visit this country for business purposes, and having concluded their business go away, should not be made subject to a like burden.” (page 240)
26. Viscount Sumner observed in his speech that:
“Grammatically the word ‘resident’ indicates a quality of the person charged and is not descriptive of his property, real or personal. To ask where he has his residence is often a convenient form of inquiry but only as leading to the question, ‘then where is he resident himself?’” (page 244)
In keeping with that thought, Viscount Sumner continued:
“… although setting up an establishment in this country, available for residence at any time throughout the year of charge, even though used but little, may be good ground for finding its master to be ‘resident’ here, it does not follow that keeping up an establishment abroad and none here is incompatible with being ‘resident here,’ if there is other sufficient evidence of it. One thinks of a man’s settled and usual place of abode as his residence, but the truth is that in many cases in ordinary speech one residence at a time is the underlying assumption and, though a man may be the occupier of two houses, he is thought of as only resident in the one he lives in at the time in question. For income tax purposes such meanings are misleading. Residence here may be multiple and manifold. A man is taxed where he resides. I might almost say he resides wherever he can be taxed.” (pages 244-245)
27. Returning to the context of the 1936 Act, the definition of “resident” in the 1936 Act was considered by the Commonwealth Taxation Board of Review in Case No. 56 (1946) 15 CTBR 421 (R.R. Gibson, Chairman and G.J.J. O’Sullivan and A.C. Leslie, Members). The taxpayer took up an appointment on board a ship and placed all of his personal belongings on board with the intention of living on it and without any definite intention of ever returning to Australia to live. The ship was in Australia for short periods during each of the tax years under consideration. The taxpayer had not abandoned his domicile in Australia. Therefore, in view of paragraph (a)(i) of the definition, he was a resident and so subject to taxation unless his permanent place of abode was outside Australia.
28. Mr Gibson considered the dictionary meanings given to “abode” and “place” and formed the view that, in one of its senses, a “place of abode” was a place of habitation or home. The ship was the taxpayer’s place of abode because it was the place where he slept, ate, worked and had his recreation. It was immaterial where the ship was moored. It was his permanent place of abode because he was residing on it for an indefinite time and his presence was not merely fleeting. Mr Gibson also considered that the expression “place of abode” might be given a broader interpretation and that:
“… meaning may be a ‘person’s home or dwelling-house or other habitation or the village, town, city, district, county, country, or other part of the world in which a person has his home or dwelling-house or other habitation or in which he habitually resides’. In the broader of these senses the taxpayer’s ‘abode’ at the material times was his ship or on his ship, and his place of abode was the particular part of the world where the ship happened to be at any given time. Even applying that sense it could, I think, be held that the tax-payer’s permanent place of abode was outside Australia.” (pages 425-426)
29. Mr Gibson did not see the need to choose one meaning over the other for:
“… The expression in which the term is found is capable of application to a wide variety of circumstances and, taking the view that it was adopted for that very reason, I venture to think it is wide enough to cover the case of any person who, though domiciled in Australia, is living, and continuing indefinitely to live, outside Australia without any definite intention of ever returning there to live. If so the expression is a proper description of the locational circumstances of the taxpayer during the period under review. The adoption of this view would certainly not be productive of any anomaly.” (page 426)
30. In 1979, the Full Court of the Federal Court in Federal Commissioner of Taxation v Applegate (1979) 79 ATC 4,307 (Franki, Northrop and Fisher JJ) considered whether Mr Applegate was a person whose “permanent place of abode is outside Australia” within the meaning of paragraph (a)(i) of the definition in s. 6(1) of the 1936 Act. It was accepted that Mr Applegate’s place of abode was outside Australia and the focus of the argument was upon the meaning of “permanent”. Franki J reached the view that:
“…‘permanent place of abode outside Australia’ is to be read as something less than a permanent place of abode in which the taxpayer intends to live for the rest of his life.
There is nothing in the subsection which requires the intent of the taxpayer to be the critical factor even though it is, of course, a relevant factor. Essentially the question is whether, as a matter of fact the taxpayer’s permanent place of abode was outside Australia at the relevant time.
…
The question is one of degree and bearing in mind the association of the phrase ‘permanent place of abode’ with the word ‘domicile’ and the fact that the liability for tax falls to be determined annually in my opinion the learned judge from whose judgment this appeal is brought was correct.
I consider that the learned judge correctly posed the relevant test when he said that ‘…what is required is that there be a permanent place of abode outside Australia and that the enquiry as to whether there is or not is an objective one, notwithstanding the fact that the intention of the taxpayer in relation to the length of time that he will reside in a place outside Australia is a relevant factor to be taken into account’. Whilst the Commissioner (and presumably the Board of Review) was entitled to look to the events which had happened since the end of the tax year in my opinion the question of the taxpayer’s intent as to the length of his stay is no more than a relevant factor to be considered.” (page 4,309)
31. Northrop J observed that one of the dictionary meanings of “reside” was “to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live, in or at a particular place” and that a person may reside in more than one country at any one time. Referring to paragraph (a)(ii), his Honour said that it “… appears to draw a distinction between ‘usual place of abode’ and ‘residence’ but it is not necessary to consider the matter further.” (page 4,313) Northrop J also said that:
“… In any event the extended meaning of ‘resident’ becomes relevant only when, during the year of income under consideration, the taxpayer does not reside in Australia. Paragraphs (a)(i) and (ii) of the definition are complementary provisions enlarging the group of persons who do not reside in Australia but become liable to pay income tax in Australia.” (page 4,314)
32. Fisher J drew distinctions between “permanent place of abode”, “home” and “usual place of abode” as well as “ordinarily resident”:
“To my mind the proper construction to place upon the phrase ‘permanent place of abode’ is that it is the taxpayer’s fixed and habitual place of abode. It is his home, but not his permanent home. It connotes a more enduring relationship with the particular place of abode than that of a person who is ordinarily resident there or who has there his usual place of abode. Material factors for consideration will be the continuity or otherwise of the taxpayer's presence, the duration of his presence and the durability of his association with the particular place.” (page 4,317)
33. With regard to the matters that should be taken into account, Fisher J said:
“ It follows that it is in my view proper to pay greater regard to the nature and quality of the use which a taxpayer makes of a particular place of abode for the purpose of determining whether it qualifies as his permanent place of abode. His intentions with respect to the duration of his residence is just one of the factors which has relevance. Obviously if his stay is purely temporary and he intends to move on or return to Australia at some definite point of time this denies the place of abode an essential characteristic of a home, namely durability. Moreover it seems appropriate to view objectively the nature and quality of the use which the taxpayer makes of the place of abode to determine whether it has the characteristics of his fixed place of abode, his home. It is to my mind perfectly consistent with the establishing of a home in a particular place that the taxpayer is aware that the duration of his enjoyment of the home, although indefinite in length, will be only for a limited period. The knowledge that eventually he will return to the country of his domicile does not in my opinion deny him a capacity to make his home outside of his country domicile. Such a conclusion is particularly open in the present circumstances where the taxpayer was not a completely free agent in the choice of when to return, it being a matter for negotiation between him and his employers.” (page 4,317)
34. The expression “usual place of abode” was considered in Case N31 (1981) 81 ATC 167 (Board of Review, K.P Brady, Chairman and L.C. Voumard and J.E. Stewart, Members) in the context of the definition of a “living-away-from-home-allowance” in s. 51A(3) of the 1936 Act. It did so in the wider context of s. 51A(1), which provided that certain amounts were allowable deductions where the assessable income of a taxpayer included “living-away-from-home-allowance”. The Board referred to dictionary meanings and to the parallel words used in the definition of “resident” in s. 6(1) and to Applegate. The taxpayer had left his bed, a wardrobe and some personal possessions in a room of a house that he had shared for fifteen months with two other people in Perth. His television he left with an aunt in Perth. He was sent to Sydney for his employment and, during the thirteen months he remained in Sydney, he lived in two properties. On returning to Perth, he returned to his room, which had been occupied during his absence by another lodger, but remained only a month. He found alternative accommodation in Perth. The Board said in its reasons:
“… In our view, the taxpayer had to possess at the very least some possessory rights in connection with the Perth house in order to advance his claim, but no such rights existed.
25. In the reference (1951) 2 T.B.R.D. 201 Case B47, the No. 2 Board, as then constituted, canvassed the view whether a taxpayer might not have two place of abode leading to examination of the further question as to which of the two might be the more permanent and therefore ‘usual’, but here we consider that the taxpayer’s degree of connection with the Perth house was so tenuous as to involve stretching the English language to unpardonable limits to call it his abode at all.
26. The evidence showed that the taxpayer returned to his home State on a number of occasions during his temporary stay in Sydney, and doubtless he regarded Perth in the abstract as his home city, his intention to return there being completely genuine and sincere. However, those considerations fall a long way short of enabling him to call a particular house in Perth his usual place of abode (ref. Cases K64 and H3 supra). We have little difficulty in finding that his usual place of abode for the year of income in question was Sydney.” (pages 171-172)
35. In Tribunal Case 76 (1982) 18 ATR 3547, Senior Member McMahon, as he then was, considered the same question. After observing that “…Fisher J equated ‘usual’ with both ‘habitual’ and ‘permanent’ …” in the Applegate case, Senior Member McMahon set out the passage from Fisher J’s judgement that I have set out in the previous paragraph. With regard to the case that he had to consider, he said:
“19. It seems to me that as a matter of fact the Adelaide home could not, during the year, be said to be the applicant’s place of abode. For six of the twelve months it was occupied by another family with their furniture. At no time during that period could the applicant have knocked on the door and demanded that he be allowed to sleep there with his family. He had granted the right of exclusive possession to others. More importantly, he did not, as a matter of fact, sleep there. For the remainder of the period it was empty of both tenants and furniture. Without fanciful hardships, it would not have been possible to stay there during this time – the remainder of the financial year. More importantly, again, the applicant did not in fact do so. A place of abode is more than a place one merely owns. It is a place where one lives. Since 1576, the Shorter Oxford English Dictionary says, abode has meant habitual residence. In that sense, the word ‘usual’ in the statutory phrase is probably unnecessary. After the applicant left the Adelaide house, it ceased to be either usual or any other adjectival place of abode. An applicant must first establish that a place of abode existed in fact before he begins to prove that it is his usual place of abode.” (page 3551)
36. The definition of “resident” in s. 6(1) of the 1936 Act was again considered by the Full Court of the Federal Court in Tanumihardjo v Federal Commissioner of Taxation (1998) 99 ATC 5330 (Hill, Tamberlin and Finkelstein JJ). Hill J, with whom Tamberlin and Finkelstein concurred, observed that both the Tribunal and Heerey J on appeal had taken the view that the word “resides” in the opening words of paragraph (a) had its ordinary English meaning. In the context of the case, Ms Tanumihardjo had resided in Australia in each year of income in the sense that she had lived here. His Honour continued:
“ The inclusory words of the definition clearly in paragraph one extend the ordinary meaning of the word resident to persons domiciled in Australia but subject to the exclusion if the Commissioner is satisfied that the person has a permanent place of abode outside Australia. The second paragraph may or may not relate to persons who, in the ordinary sense of the words, reside in Australia in the year of income. It is arguable that they extend the definition only to persons who do not reside despite a presence in Australia for the statutory period of more than one half of a year. The alternative view is that the language of (ii) may be intended more to subtract from the ordinary case of a resident, the special case described in (a)(ii) but subject to the exclusory words and thus apply to a person who in the ordinary sense is a resident of Australia.” (page 5332)
37. Most recently, the definition in s. 6(1) of “resident” has been the subject of consideration by the Full Court of the Federal Court in Commissioner of Taxation v Executors of the Estate of Santha Thevy Subrahmanyam. Of “usual place of abode”, Hill J, with whom Tamberlin J agreed, said:
“… Logically, the fact that a taxpayer does not have a usual place of abode somewhere else. To use the language of an English authority, the taxpayer might be a ‘bird of passage’, moving from place to place with no usual place of abode anywhere: Levene v Commissioners of Inland Revenue [1928] AC 217 at 226; (1928) 13 TC 486 at 501. Prima facie, if such a person were in Australia more than one-half of the relevant year of income, but had not established a usual place of abode here, that person would still be a resident of Australia. The prima facie position would not have been displaced because the Commissioner could not be satisfied that such a person had a usual place of abode outside Australia. Accordingly, the person would be a resident of Australia as a consequence of the second statutory test.” (pages 188-9)
38. In addressing the particular case considered by the previous Tribunal, his Honour said:
“ … No doubt there could be some cases where, the choice being between two obvious alternative places of abode, a conclusion that a person has not a usual place of abode in Australia would necessitate a finding that the person had his or her usual place of abode at the alternative place. However, the present was not a case where there was merely a need to consider which, of two alternative places where the taxpayer had a place of abode, was the usual place of abode. Rather there was a real question here whether the taxpayer in fact had a place of abode outside Australia at all, let alone a place of abode that would qualify as a usual place of abode.
34 At no point in its reasons did the Tribunal consider whether the taxpayer had a place of abode in some place outside Australia and, if so, whether that place of abode was the taxpayer's usual place of abode. In failing to consider whether the taxpayer's usual place of abode was in fact Singapore (no other place appears to have been suggested as qualifying as a possible place of abode) the Tribunal failed to ask itself the correct question. …” (page 189)
39. Emmett J said of “usual place of abode”:
“… The Act appears to contemplate that there will be only one usual place of abode, although it does not necessarily follow that every person must have a usual place of abode. When comparing two places of abode of a particular person, in order to determine whether one is the usual place of abode, it is necessary to examine the nature and quality of the use to which the person makes of each particular place of abode. It is then possible to determine which is the usual one, as distinct from the other or others which, while they may be places of abode, are not properly characterised as the usual place of abode.” (page 197-8)
40. Having regard to these authorities, there seems to be no clear path that I am required to tread in considering whether Dr Subrahmanyam’s usual place of abode was outside Australia for the purpose of paragraph (a)(ii) of the definition of “resident”. For all that, one or two of the stepping stones on the path are outlined with some clarity. One is that a person may have more than one place of abode. Another is that I must have regard to the context within which I am required to decide the matter. …”
42. One of the difficulties that I have with the definition of “resident” is that the words used to define it carry a range of meanings and shades of meaning in ordinary usage. Those meanings overlap so that, in some instances, the words may be used interchangeably. The same is true of the meanings attributed to the words interpreted by the courts in the authorities to which I have referred. Judges such as Northrop J in Federal Commissioner of Taxation v Applegate have contemplated whether a distinction should be drawn between residence and usual place of abode but did not express a concluded view on the matter. In proffering two alternative interpretations of the definition in s. 6(1)(a)(ii), Hill J in Tanumihardjo v Federal Commissioner of Taxation also explored a similar type of distinction but again did not express a concluded view.
…”
Mr Hughan referred also to the case of Re Taylor; Ex parte Natwest Australia Bank Pty Ltd (1992) 37 FCR 194, in which Lockhart J considered the expression “ordinarily resident” in the context of s. 43(1)(b)(i) of the Bankruptcy Act 1966. The issue was whether Mr Taylor had committed an act of bankruptcy while ordinarily resident in Australia. Lockhart J observed that neither the word “resident” nor the words “ordinarily resident” have any technical or special meaning; they are ordinary English words. In the context of the Bankruptcy Act 1966, the question of Mr Taylor’s ordinary residence had to be determined at the date of the act of bankruptcy. A person may have two places of residence and, although he or she may not be physically present in both at the same time, may be said to live in both at the same time. His Honour continued:
“… People may come and go from the place in which they are ordinarily resident in a large variety of circumstances and on various occasions. It is always a question of fact and degree.
To say that a person is ordinarily resident in Australia must mean something more than that he is resident in Australia. The word ‘ordinarily’ connotes a comparison, a measure of degree. A person may have more than one residence, but he is not necessarily ordinarily resident in each of them. The question must be determined for the purposes of s 43 of the Act at a particular time. One must ask the question whether at that time the person was ordinarily resident in Australia. The concept of ‘ordinary residence’ for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person's life he regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently. The expression ‘ordinarily resident in’ connotes some habit of life, and is to be contrasted with temporary or occasional residence: see Levene (supra) and Lysaght (supra). As Lord Warrington said in Levene (at 232): ‘ “Ordinarily resident” means according to the way a man's life is actually ordered.’ The concept of ordinarily resident cannot be stated in definite terms; each case must be determined on its facts and after taking into account all relevant matters: see the Canadian case of Thomson v Minister of National Revenue [1946] SCR 209 per Estey J at 231.” (page 198)
In Scargill v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2003] FCAFC 116 (French, von Doussa and Marshall JJ), the Full Court of the Federal Court considered the meaning of “usually resides” in the context of whether a person is a remaining relative of another person who is usually resident in Australia in criteria for a Subclass 806 visa. Their Honours said:
“In Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241, to which the Tribunal referred, Williams J, with whose reasons Rich ACJ and McTiernan J expressed agreement, made the following observation that is pertinent to this case, at 249:
“The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other place of abode: see Halsbury's Laws of England, 2nd ed., vol. 17, pp. 376, 377. ”
…” (paragraph 17)
Later in its reasons, the Full Court said that the essential elements in the notion of “usually resides” are “physical residency and intention” (paragraph 21).
I now return to Mr Ng’s case. Mr Hughan submitted that I should have regard to the context of the Act and, in doing so, should note that s. 294 is part of a scheme regulating the giving of immigration assistance for the benefit of the Australian community and prospective immigrants. This would justify, Mr Hughan submitted, my adopting a broad interpretation of what is “usual resident”. In doing so, I should adopt a test that emphasises “connection” more than “presence”. He referred to the Information Sheet in which it is stated that:
“… Factors considered to determine ‘usually resident’ typically include:
physical presence in a particular place
intention to treat a place as home
family and social ties
place of employment
property or business interests
whether the person maintains a home in Australia
indicators such as bank statements, drivers licence
person’s reasons for being overseas
his or her intention to return to Australia
where an individual intends to live.” (Exhibit E)
While I agree with Mr Hughan that the factors as set out in the Information Sheet do tend to emphasise the aspect of “connection” with a place rather than “presence” in a place, I do not think that I should start with those factors. Instead, I should start with the context in which the expression “usually resides” is used. When that is done, it becomes apparent that, apart from those who are usually resident in Australia, MARA may only register as migration agents those persons who are Australian citizens or who are New Zealand citizens holding a special category visa. There is no requirement that they be resident or usually resident in Australia but there is a connection by virtue of citizenship in the case of the former and a special category visa in the case of the latter. In the case of non-citizens other than New Zealanders holding a special category visa, there is a connection by virtue of their being required to have a permanent resident visa. Unlike Australian citizens and New Zealand citizens holding a special category visa, however, a connection is not enough. The Act goes on to require that they be “usually resident”. In this regard, the Act goes beyond requiring that they have simply a connection but requires a presence. In view of that, it seems to me that the expression “usually resident” should not be read down to refer simply to some “connection”. Instead, it should be given its ordinary meaning.
In its ordinary meaning where a person “usually resides” refers to the place where he or she customarily or ordinarily lives or has his or her home. He or she may have more than one place where he or she usually resides. A person may usually reside at a place even though he or she has periods of absence from that place and even if those periods of absences are frequent or, perhaps, even extended. In each case, whether or not a place is where a person usually resides is a matter of judgement after all relevant factors have been taken into account. Those relevant factors included factors set out in the Information Sheet. In some cases, some factors will carry more weight than in others.
When must I consider whether Mr Ng is usually resident in Australia? To answer this question, I must have regard to the principles set out by Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 after he had reviewed the earlier decisions of Re Tiknaz and Director-General of Social Services (1981) 4 ALN N44 (Davies J, President, Senior Member Ballard and Dr Garlick, Member), Jebb v Repatriation Commission (1988) 80 ALR 329 (Davies J), Re Easton and Repatriation Commission (1987) 12 ALD 777 (Davies J) and Re McGourty and Repatriation Commission (1988) 9 AAR 87 (Davies J). Davies J said that regard must always be had to the nature of the decision which is under review. In so far as a decision concerning entitlement to a pension under social security legislation is concerned, he said:
“… the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal's decision.” (page 345)
It seems to me that the same principles are applicable in this case. Registration is a status or benefit, the entitlement to which can be considered as at the date when the application for it was lodged or at any time up to the date when the decision is reviewed and a decision reached upon that review. In this case, it makes no difference whether I consider Mr Ng’s entitlement to registration as at the date of his application for registration or at today’s date or on some date in between. I am not satisfied that he is usually resident in Australia. In reaching that decision I have taken into account several factors.
I find that Mr Ng longs to live in Australia, to watch rugby and soccer as it is played, to drive his Morgan motor vehicle on its roads and to enjoy the company of his friends, to educate his daughter in its education system, to work in what he perceives to be an environment less pressured than that in Singapore and, in general, to enjoy Australia’s lifestyle and to make his contribution to its community. His longing to live in Australia, though, does not mean that he usually resides here.
The last time that he can be said to have lived in Australia was in 1996. Since then, he has maintained his personal links with his friends and has maintained his professional links with the CCCV in Australia and so much so that he has flown here especially for the immediate past President’s funeral and represented the CCCV at a meeting of the WCEC in Singapore. Mr Ng himself described himself as the “Singapore based” representative of the CCCV at that time. He has maintained his social links in the form of his membership of the Morgan Car Owners Club but has, on the evidence, attended only one of its social outings since 1996. Mr Ng has also maintained his health insurance and driver’s licence but they are not indicative of his residing in Australia in any sense. In the circumstances, they are more consistent with a finding that they enable him to step back into his life in Melbourne with relative ease when he does reside here.
Mr Ng has taken steps in Australia that he hopes will provide him with an income in the future. In 2002, he entered an agreement with Mr Khan to establish a café but that is still a project that is still to come to fruition. He has assisted Mr Khan in finding additional finance and in taking the steps he has negotiated to date but he has spent very little time actually in Australia. These steps followed upon another failed business venture in Tasmania. Mrs Leong and Mr Ng have enrolled their daughter in an Australian school. I am also satisfied that Mr Ng is attempting to establish a professional relationship or partnership with various people in Australia so that he can establish himself in Australia.
These matters show Mr Ng’s intention to live in Australia in the future. In different circumstances, they might even tip the balance and persuade me that he usually resides in Australia. In this case, however, I am not satisfied that Australia can be said to be a place in which Mr Ng ordinarily carries out the daily activities of his life. It is not a place where he usually carries on his social activities, however limited they may be, or his family life. It is not a place where he ordinarily sleeps, eats or keeps his possessions. It is not a place to which he ordinarily returns but rather a place that he visits from time to time. It is not a place in which he owns or rents any place, be it a house, apartment, unit, flat or even a room, that he can say is the place where he usually resides. Even if he now stays with his brother who has recently purchased property in Melbourne, I find that Mr Ng has spent only a matter of days (something in the order of 29 days) in Australia since he left in 1996. They were during the period from 13 November, 2000 to 3 April, 2003 and he has spent only a few additional days in Australian since then. By way of contrast, he has, apart from one trip each year to Malaysia to visit his wife’s family, spent all the other days in the year in Singapore. That is the country in which he has worked and in which he has built up his business. It is the country in which he can be said to live and work with his wife and daughter. Certainly, I accept that, unlike Australia, he has not joined social clubs in Singapore and, apart from the Singapore Chinese Chamber of Commerce, he has not taken part in professional activities. For all that, Singapore is the country in which he resides and Australia is a country which he visits and in which he wishes to live in the future but it is not a country in which he usually resides or can be said at any relevant time since he lodged his application for registration to usually reside.
In making this decision, I realise that it may be more difficult for Mr Ng to take steps to establish himself professionally in advance of his returning to Australia with his family. In the circumstances, however, the Act does not give me any discretion to consider matters beyond the question of whether Mr Ng is usually resident in Australia. It follows that, for the reasons I have given, I affirm the decision of the respondent made on 8 May, 2003 and notified in a letter dated 21 May, 2003.
I certify that the fifty preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie
Signed: ...............................................................
P. Paczkowski Associate
Date/s of Hearing 15 October, 2003
Date of Decision 21 November, 2003
Counsel for the Applicant Mr G. Hughan
Solicitor for the Applicant Erskine Rodan & Associates
Counsel for the Respondent Mr T. Fell
Solicitor for the Respondent Australian Government Solicitor
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