NGA FUN WONG and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 102

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 102

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0971

GENERAL ADMINISTRATIVE DIVISION		)
Re		NGA FUN WONG

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member

Date16 February 2009

PlaceSydney

Decision The decision under review is affirmed.

...................[Sgd]....................

Ms Robin Hunt
  Senior Member

CATCHWORDS

IMMIGRATION – Citizenship – application by permanent resident and widow of Australian citizen – meaning of ‘spouse’ – widow not spouse – not a spouse in relevant period for citizenship purposes – consideration of discretion where engaged in activities beneficial to Australia – nature of overseas activities – decision under review affirmed.

Australian Citizenship Act 1948

Australian Citizenship Act 2007 ss 21, 22

Australian Citizenship (Transitionals and Consequentials) Act 2007 Items 7(2), 7(7), 7(8)(1), 7(8)(4) of Part 1 of Schedule 3

Australian Citizenship Instructions Chapter 5

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82

Re Anand and Minister for Immigration & Citizenship [2008] AATA 89

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

Re Pai and Minister for Immigration & Ethnic Affairs(1994) 35 ALD 762

REASONS FOR DECISION

16 February 2009 Ms Robin Hunt, Senior Member   

summary

1.      Nga Fun Wong, who is also known as Virginia Wong, applied for Australian citizenship in 2007 but was unsuccessful. The tribunal is reviewing the decision of a delegate of the Minister which rejected her application. Ms Wong claims she is entitled to conferral of citizenship because she is the holder of a permanent residency visa, was married to an Australian resident until his death in 2001, has family links to Australia and other links, including financial interests and cultural and business associations with Australia. Although she admits she has not been present in Australia for the usual length of time or frequency expected before conferral of citizenship, Ms Wong says she qualifies for favourable exercise of available discretion as she has been engaged in activities beneficial to Australia when not resident in Australia.

reviewable decision

2. On 9 February 2008, a delegate of the Minister found Ms Wong did not meet the residency requirements of subitem 7(8) of Schedule 3 to the Australian Citizenship (Transitionals and Consequentials) Act 2007 (‘the Transitional Act’). The delegate also considered the exercise of discretionary powers available under subitem 7(8)(4) of the Transitional Act and subsection 22(9) of the Australian Citizenship Act 2007 (‘the new Act’) but found Ms Wong did not meet necessary criteria.

consideration

3.      It is not in dispute that Ms Wong married an Australian citizen, David Poon, in Australia, on 22 February 1995, and became a permanent resident of Australia on 18 February 1996. It was not until more than 11 years later that Ms Wong applied for citizenship, on 21 June 2007. The delegate decided the outcome of her application on 9 February 2008. As Ms Wong applied for citizenship under the Australian Citizenship Act 1948 (‘the old Act’), but her application had not been decided by the date of effect of the new Act, 1 July 2007, transitional provisions apply to Ms Wong’s case pursuant to the Transitional Act.

4. Item 7 of Schedule 3 to the Transitional Act provides for assessment of applications made under the old Act which have not been resolved before the date of effect of the new Act. Subitem 7(7) reads:

Assessing new applications under the new Act

(7)        In assessing a new application under the new Act, a reference in the new Act to the time the person made the application is taken to be a reference to the time the old application …, was made under the old Act.

5.      Pursuant to subitem 7(2), if an application had not been decided before the new Act came into effect, it must meet particular requirements, as follows:

(2)        If a person's application (the old application ) made under section 13 or 23D of the old Act had not been decided immediately before the commencement day, the old application is, on and from the commencement day, taken to be an application (a new application ) to become an Australian citizen made under section 21 of the new Act.

6.      This provision is followed by a note:

Note:       The new application will be assessed under Subdivision B of Division 2 of Part 2 of the new Act. Subitems (7) and (8) are also relevant to this assessment.

7. Ms Wong’s application also must satisfy the residency requirements of sections 21 and 22 of the new Act, by virtue of subitem 7(8) of Schedule 3 to the Transitional Act. This means I must apply the following provision to her case:

7(8) In applying section 22 of the new Act to a new application covered by subitem (2), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:

(1)  For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:

(a)  a total period of at least 1 year in the period of 2 years before the day the person made the application; and

(b)  a total period of at least 2 years in the period of 5 years before that day.

…

(4) 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 engaged in activities during that period that the Minister considers to be beneficial to Australia; and

(b) the person was not present in Australia during that period but was a permanent resident during that period.

8.      Ms Wong meets at least some of the requirements for citizenship. She was granted a permanent resident’s visa on 18 February 1996 and made an application for conferral of Australian citizenship while present in Australia. She also was present in Australia for the tribunal’s hearing on the review of the delegate’s decision and gave oral evidence. Her brother, who is an Australian citizen and local government councillor, represented and assisted Ms Wong for the review.

9.      When not present in Australia, since she held a permanent residency visa, Ms Wong claims she engaged in overseas activities that were beneficial to the interests of Australia. Her key claims are that she has brought economic benefit to Australia and that she has enriched the cultural environment of Australia.

10.     The Minister further accepts, and I find, that Ms Wong satisfies some other requirements as to general eligibility. There is evidence that she is likely to maintain a close and continuing association with Australia, which is relevant to subparagraph 21(2)(g) of the new Act. Ms Wong’s brother in Australia, Cr Ernest Wong of Burwood Council, supported her application and she has provided bank statements for her Australian bank account. There also is evidence of Ms Wong’s good character in a police clearance certificate from Hong Kong police.  This is relevant to subparagraph 21(2)(h).

11.     The Minister further accepts that Ms Wong paid income tax on Australian salary, which is evident from PAYG statements. However, Ms Wong’s salary, indicated in the payment records and confirmed in her oral evidence, was a very small amount and this payment, in my view, is not an activity that is particularly beneficial to the interests of Australia. My view accords with remarks made in the case of RePai and Minister for Immigration & Ethnic Affairs (1994) 35 ALD 762, where the tribunal observed that paying tax, paying school fees, providing work for Australian accountants and generally acting as a consumer in Australian society was not activity inherently beneficial to the interests of Australia.

12.     Furthermore, movement records for Ms Wong supplied by the Minister indicate that she spent 125 days in Australia as a permanent resident in the five years leading up to her citizenship application, with 91 of those days in the two years before her application. The Minister’s exact movement details for Ms Wong in the five years before her application are:

Arrival	Departure	Days spent in Australia
07.07.02	21.07.02	14
29.06.03	12.07.03	13
10.04.05	17.04.05	7
15.02.07	24.04.07	68
28.05.07	16.07.07	49

13. Under subitem 7 of the Transitional Act, it is possible to treat time an applicant spent overseas as time spent in Australia where the applicant was with his or her Australian citizen spouse. Ms Wong argues she is entitled to be considered under this provision as she is the widow of a citizen. As well, overseas activities that Ms Wong claims were beneficial to the interests of Australia include some that brought economic benefit to Australia and some that enriched the cultural environment of Australia.

general eligibility

14.     Subsection 21(2) of the new Act sets out a number of tests that must be satisfied before a person becomes eligible for Australian citizenship. Among these is the requirement in paragraph (c) that the person satisfy the residence requirement. Subparagraph 21(2)(c) makes cross reference to section 22 of the new Act in this respect.

15.     Ms Wong provided evidence that she is the widow of an Australian citizen.  Her documentary evidence includes a copy of the marriage certificate showing she married David Poon, documents confirming the Australian citizenship of David Poon, a copy of his death certificate, and a letter from the Family Court of Australia stating there is no record of divorce between Ms Wong and Mr Poon.

16.     As a widow of an Australian citizen, Ms Wong sought recognition not only as a widow but also as a spouse. Subsection 22(9) of the new Act confers Ministerial discretion for favourable treatment of a spouse, widow or widower of an Australian citizen. The provision reads:

(9) If the person is the spouse, widow or widower of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

(a) the person was a spouse of that Australian citizen during that period; and

(b) the person was not present in Australia during that period; and

(c) the person was a permanent resident during that period; and

(d) the Minister is satisfied that the person had a close and continuing association with Australia during that period.

17.     Not only does Ms Wong claim that she is currently the widow of an Australian citizen but that she continued to be the spouse of an Australian citizen while she was overseas for the periods leading up to her citizenship application, although her husband was deceased. If she is correct in her assertion that a widow is a spouse and that she was engaged in activities beneficial to Australia for relevant periods during which she was overseas after the death of her husband, these periods may be treated as periods when she was in Australia.

18. Ms Wong does not satisfy the residence requirements through periods of actual residence in Australia but argues that periods when she was overseas should be considered periods of residence in Australia under section 22 of the new Act and item 7 of the Transitional Act. In view of her evidence of her marriage to an Australian citizen and his subsequent death, I find that Ms Wong satisfies the requirement that at the time of her application she was the widow of an Australian citizen. Therefore, she was entitled to apply for citizenship in accordance with subsection 22(9). She also must establish that she was a spouse of an Australian citizen during that period overseas, pursuant to subparagraph 22(9)(a), as she does not satisfy residence requirements through actual presence in Australia. As well, she must establish close ties pursuant to subparagraph 22(9)(d).

19. Subitem 7(8) of the Transitional Act also affects Ms Wong’s application. However, the requirement that Ms Wong be resident for at least 1 year in the period of 2 years before the application and a total of at least 2 years in the period of 5 years before that day, may be overcome if she satisfies subitem 7(8)(4). That paragraph gives discretion to treat a period as one in which the person was present in Australia as a permanent resident, if the person was engaged in activities considered beneficial to Australia and if the person was a permanent resident during that period. The second of these requirements is satisfied. Ms Wong has been a permanent resident since 1996, so she seeks to establish that her activities when overseas were beneficial to Australia.

20.     Chapter 5 of the Australian Citizenship Instructions sets out guidelines for exercise of Ministerial discretion relating to subsection 22(9) of the new Act:

This discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto spouse.

Factors that may contribute to a close and continuing association with Australia include: Australian citizen spouse; Australian citizen children, if any; length of relationship with citizen spouse; extended family in Australia, if any; return visits to Australia; periods of residence in Australia; intention to reside in Australia; employment in Australia (e.g. public or private sector); ownership of property in Australia; evidence of income tax payment in Australia; and current bank accounts, if any, in Australia.

21.     Firstly, the guidelines indicate that the discretion usually would be exercised only if an applicant were overseas with their Australian citizen spouse. Ms Wong was not in this situation. Ms Wong’s spouse had passed away on 28 February 2001 according to the death certificate Ms Wong furnished. His death occurred before the relevant periods of 2 years and 5 years preceding the date of her application. It follows that Ms Wong was not at relevant times with her spouse overseas for the exercise of discretion giving her notional presence in Australia.

22.     Further evidence from Ms Wong relates to her having a close and continuing association with Australia. Ms Wong does have ties including the relationship with her brother, who represented her at the hearing, and also has extended family in Australia. Movement records show she has paid return visits to Australia and stayed for periods of residence in Australia. She has stated an intention to reside in Australia, has had some employment in Australia in the private sector, owns property in Australia, has made payment of income tax in Australia and has current bank accounts.

is a widow a spouse?

23.     In order for Ms Wong’s periods spent overseas to be treated as periods in which she was in Australia, Ms Wong must show that she was the spouse of an Australian citizen. The genuineness of Ms Wong’s marriage is not at issue. The success of Ms Wong’s application, however, depends on her still being treated as the spouse of an Australian citizen after his death.

24.     The Macquarie dictionary defines “spouse” as “either member of a married pair in relation to the other”. As a general proposition, I find that a deceased person or the partner of a deceased person cannot be a member of a married pair but can be only a former member of a formerly married pair. Once death of a spouse has occurred, the surviving partner is no longer a member of a couple or married pair but is single and free to remarry. In common parlance, a widow means someone who is not a spouse but someone who has ceased to be a spouse because her husband has passed away. I agree with the Minister’s view that provisions designed to apply to a spouse cannot be taken to apply to the partner of a former spouse who is no longer alive. Widows and widowers are not considered spouses by reason of the event of separation caused by death. As additional support for this proposition, I note there are references in the legislation to widows and widowers as categories of applicants who are distinct from spouses. One such reference is contained in subsection 22(9) where spouses, widows and widowers are all specified.

25.     It follows that Ms Wong cannot satisfy paragraph (a) of subsection 22(9) for the purpose of treating a period after Mr Poon’s death as one in which she was present in Australia as a permanent resident. Ms Wong cannot be called the spouse of Mr Poon after his death. She is his widow.

26.     In addition, policy guidelines indicate the discretion usually is exercised only if an applicant was overseas with their Australian citizen spouse during the time in question. This cannot occur where the former spouse has already passed away. Ms Wong was not overseas with her Australian citizen husband during the times in question, which preceded her citizenship application, as her husband's death had already occurred some time previously, in February 2001.

27.     I therefore find that Ms Wong’s application cannot succeed as she does not satisfy paragraph (a) of subsection 22(9) of the new Act. Even if she meets the further requirements of the subsection, she fails to establish the basic requirements for exercise of the discretion. Each requirement of subsection 22(9) is cumulative. She must be a spouse of an Australian citizen during the relevant periods she was overseas, as well as be a permanent resident and have a close and continuing association with Australia.

benefit to australia

28.     I have briefly considered below Ms Wong’s claims about benefit to Australia of her activities overseas in addition to her spousal status, although this will not assist her application in view of my finding above that she was not a spouse at relevant times.

29.     Pursuant to subitem 7(8), in applying section 22 of the new Act to a new application, paragraph (4) permits the Minister, or the tribunal in reviewing a decision, to treat a period as one in which the person was present in Australia as a permanent resident if the person was engaged in activities during that period that the Minister considers to be beneficial to Australia; and the person was not present in Australia during that period but was a permanent resident during that period. Ms Wong of course held a permanent residency visa throughout but has tried to establish the other requirement about beneficial activities during her absences.

Activities of Economic Benefit

30.     While in Australia and overseas, Ms Wong has engaged in some commercial and cultural activities related to Australia. Two businesses in particular may have brought some benefit to Australia. As an International Marketing Director for Great Trend Management Pty Ltd (‘GTM’), an Australian company, Ms Wong argued she brought economic benefit to Australia. She produced her contracts of employment with Wonder Tour and GTM. The Managing Director of GTM, Claude Wan or Fung Wan, who was a signatory to Ms Wong’s employment contract with GTM, gave oral evidence at the tribunal hearing in support of Ms Wong.  Mr Wan wrote a letter supporting Ms Wong, saying she effected a substantial intake by GTM of Chinese Government training, business and government visits to Australia to the “approximate average number of 500 visits per year for the last 8 years”.  This letter also stated that she helped attract Chinese investors to Australia.

31.     Mr Wan confirmed in oral evidence that Ms Wong’s employment commenced with Wonder Tour in 1999, and transferred to GTM once Wonder Tour operations wound down.  He described the assistance Ms Wong brought to GTM and the new business that grew out of her contacts in China and her introductions.

32.     The argument is that Wonder Tour and GTM brought a new class of visitors to Australia through the activities of Ms Wong. She was able to introduce people in government who were interested in studying local government in Australia. The visitors she generated attended local councils and conferences about local government. Ms Wong also introduced new business travellers.

33.     Mr Wan gave evidence that Ms Wong’s contacts for the company were responsible for approximately 50 per cent of the company’s tours or turnover and that Ms Wong was responsible for a new kind of tourism through his company. Once she provided introductions to persons interested in this kind of travel, he followed up the introductions to learn what activities they were interested in and the ‘organiser’ in GTM made the actual arrangements in Australia. These included accommodation, hotel bookings and study tours.

34.     Ms Wong argued the economic benefit of these activities and her successfully promoting the Australian tourism market to China through her engagement with GTM, helped “inspire the tourism industry”.  In a statement attached to a statutory declaration signed on 29 June 2007, Ms Wong said her role in Hong Kong was to “open the market, facilitate and creat[e] the visits to be followed up by the operation of GTM in Australia”.

35.     I accept that Ms Wong fulfilled her role in contacting potential GTM clients and passing these details on to the GTM office in Sydney. She has facilitated some “connection” between Australian and Chinese government organisations, and this may open some opportunities for Australian business operators.

36.     Although Ms Wong argues that payment of income tax is a benefit for Australia, her tax records show Ms Wong’s time and effort spent on these activities has not generated much income for her. Ms Wong has not earned sufficient income from her employment with GTM to warrant lodgement of income tax returns although the employer deducted income tax according to copies of PAYG statements.

37.     Although she claims that, in 2005, she spent most of her time contacting the Chinese government to conduct study tours in Australia, I note that her oral evidence was that time spent on her various activities overlapped. To her written statement, Ms Wong attached monthly reports of contacts in support of her claims.  She also referred to statistics indicating that in 2005, Chinese visitors spent $957m in Australia, and $999m in 2006. Undoubtedly, Ms Wong has contributed to the growth of GTM’s business in Australia. She may also indirectly have contributed to the growth in Chinese travel within Australia. However, although Ms Wong is involved in international marketing for an Australian concern, and her personal efforts and contacts with potential Chinese tourists, have been positive, I consider Ms Wong’s activities have benefited GTM principally and she has shown herself a diligent employee of GTM rather than directly benefited Australia. See Re Anand and Minister for Immigration & Citizenship [2008] AATA 89, where it was held that activities carried out as a proficient and qualified employee were of a private nature.

38.     Ms Wong gave further evidence that she also is a consultant for Allife Australia, which produces health foods or products. She told the tribunal that she had signed a contract with the company but it was just starting and she commenced marketing for it around March 2007. In addition, Ms Wong has been involved in the business of Asia Pacific International. She is a director of this business entity or company and is involved in the trading and distribution of printing cartridges and ink for computers, bringing products to Australia from China. This business has one employee. Regardless of these activities, as much of Ms Wong’s involvement occurred fairly recently and she has provided little evidence of significant benefit to Australia or as to actual days or hours spent on these activities, they are not sufficient to meet the residency requirements set out in the Transitional Act.

Cultural Enrichment

39.     Ms Wong also made some contributions to cultural activities between Australia and China. She said she has participated in taking Australian performing arts groups to China to “showcase” the culture and art of Australia and submitted an activity report about these cultural exchanges. This report records the participation of Chinese performing arts groups in the 2005 Sydney International Children's Cultural and Arts Festival.  The report also lists other Chinese performing arts associations.  A letter from the Director of Australian Chinese Performing Artists' Association (‘ACPAA’), Jun Wu Yu, states Ms Wong was engaged by ACPAA on a voluntary basis to facilitate the exhibition of Australian Arts in China, and Chinese Arts in Australia.

40.     As well, a letter from Six Pak Productions states that Ms Wong assists this organisation in exploring avenues to showcase Australian culture in China.  The letter notes that, in particular, Ms Wong assisted Six Pak in securing an invitation to participate in Chinese New Year Celebrations in 2007. All these activities obviously assist cultural exchange and understanding between Australia and China. However, the times of Ms Wong’s participation, which occurred after Mr Poon’s death and account for only a portion of her time spent overseas mean that they do not meet the requirements of subsection 22(9) and subitem 7(8).

41.     The leading authority on the interpretation of the phrase “activities beneficial to the interests of Australia” is the Federal Court decision of Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82, where Einfeld J said:

It seems to me that the term "activities beneficial to the interests of Australia" means something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia, even if of a general or non-specific character, and means more than the private interests of the respondent. The section requires some objective benefit to Australia… [An individual's] family ties and close association with Australia … are not relevant to the consideration of whether [that person's] activities overseas are "beneficial” to Australia".

42. While Ms Wong has no doubt contributed to tourism and to cultural exchanges, her ties to Australia do not enhance her contribution. In addition, as I have observed above, the days Ms Wong spent on economic and cultural activities that have benefited Australia have not been sufficient to meet the residency requirements set out in the Transitional Act.

43.     As indicated in the case of Re Ho and Minister for Immigration & Ethnic Affairs (1994) 34 ALD 664 per Deputy President McMahon, the discretion to find time spent overseas equates to actual residence in Australia exists to provide flexibility in exceptional circumstances, not to allow circumvention of residency requirements. See also the residency requirements in the old Act. Ms Wong has spent less than a quarter of the requisite days in Australia in the last five years. I consider it is not appropriate to use subitem 7(8)(4) of the Transitional Act in these circumstances as it would involve unacceptable circumvention of the mandatory residency requirements.

44. Ms Wong has not established that she is eligible for the benefit of exercise of the discretion pursuant to section 22 of the New Act or subitem 7(8)(4) of the Transitional Act.

decision

45.     The decision under review is affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: .........................[Sgd]...........................
  Jennifer Wong, Associate

Date/s of Hearing  8 December 2008
Date of Decision  16 February 2009
Applicant’s Representative      Mr Ernest Wong
Solicitor for the Respondent     Ms Zoe McDonald, DLA Phillips Fox