Re Jiang and Minister for Immigration and Citizenship

[2011] AATA 688

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 688

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3806

GENERAL ADMINISTRATIVE DIVISION		)
Re		YI JIANG

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date6 October 2011  

PlaceSydney

Decision The Tribunal affirms the decision under review.  

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

Ms N Bell, Senior Member  

CATCHWORDS

CITIZENSHIP:  Refusal to grant citizenship. Applicant does not meet residence requirements. Exercise of discretion to count periods spent overseas as periods of permanent residence in Australia.  No evidence of close and continuing association with Australia during the relevant period. 

LEGISLATION

Australian Citizenship Act 2007, Sections 21(2), 22(1) and 22(9)

CASES

Singh v Minister for Immigration and Citizenship [2011] FCA 685

Minhas and Minister for Immigration and Citizenship [2011] AATA 388

Tanko v Minister for Immigration and Citizenship [2011] AATA 122

Wolstenholme and Minister for Immigration and Citizenship 115 ALD 219

Sopronov v Minister for Immigration and Citizenship [2011] AATA 126

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      Yi Jiang applied for Australian citizenship on 1 July 2010.  On the basis that Mr Jiang had not satisfied the residence requirements of the Australian Citizenship Act 2007 (sections 21(2) and 22(1)), the Minister refused to grant his application.  In doing so, the Minister also refused to exercise a discretion to count periods spent overseas by Mr Jiang, whose spouse is an Australian citizen, as periods of permanent residence in Australia (section 22(9)).

2.      It is not in dispute that:

·On 23 February 1990 Yi Jiang and Run Gong married in China;

·On 8 June 1990 Yuhan Jiang was born to Yi Jiang and Run Gong in China;

·On 16 September 1998 Run Gong and Yuhan Jiang came to live in Australia;

·On 29 September 2005 Run Gong was granted Australian citizenship;

·On 30 May 2003 Yi Jiang was granted a Subclass 856 Visa (Permanent Residence);

·On 27 May 2010 Yi Jiang passed the Citizenship Test;

·On 1 July 2010 Yi Jiang applied for Australian citizenship;

·Between 2 July 2006 and 1 July 2010 (four years) Yi Jiang was in Australia for 76 days;

·Between 2 July 2009 and 1 July 2010 (one year) Yi Jiang was in Australia for 18 days.

3.      It is clear, and there is no dispute, that Mr Jiang does not meet the residence requirements in the Act.  The question for me to consider is whether the discretion conferred by section 22(9), the only discretion relevant to Mr Jiang’s circumstances, should be exercised in his favour.  Section 22(9) provides:

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

(a)  the person was a spouse or de facto partner of that Australian citizen during that period; and

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

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

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

4.      Much was made by both parties of the following passage from the Citizenship Instructions relevant to the exercise of this discretion:

Under s22(9) and (10), periods spent overseas by a permanent resident who is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen can be counted as periods of permanent residence in Australia if the person had a close and continuing association with Australia during those periods.  Policy is that this discretion would usually only be exercised if the applicant was overseas with their Australian citizen spouse or de facto partner.

Factors that may contribute to a close and continuing association with Australia include:

Australian citizen spouse or de facto partner;

Australian citizen children, if any;

length of relationship with Australian citizen spouse or de facto partner;

extended family in Australia, if any;

return visits to Australia;

periods of residence in Australia;

intention to reside in Australia;

employment in Australia (eg public or private sector);

ownership of property in Australia;

evidence of income tax payment in Australia; and

current bank accounts, if any, in Australia.

5.      The inclusion in this passage of the word “usually” leaves scope for the exercise of the discretion favourable to an applicant in circumstances where the applicant was not “overseas with their Australian citizen spouse or partner”.  The discretion conferred by the Act is not fettered by the words in the Instruction and I may have regard to them.  In reaching this conclusion I am guided by the judgment of the Federal Court in Singh v Minister for Immigration and Citizenship [2011] FCA 685 in which a similarly worded passage appeared in the Instructions in respect of a discretion conferred by section 24(2) to refuse to grant citizenship. The Court said:

policy considerations referred to in the 2005 explanatory memorandum were not intended to govern the exercise of the discretion but to set out circumstances when applications would “usually be approved”, thereby leaving the appropriate decision to the decision maker. The Instructions are not intended to dictate how the discretion under s 24(2) is exercised (Budilay v Minister for Immigration and Citizenship [2011] FCA 508 at paragraph [11], per Buchanan J);

the Instructions constitute a statement of departmental policy to which an administrative decision maker is entitled to have regard (Hneidi at paragraph [40] to [45]);

as the Instructions set out policy considerations which the explanatory memorandum suggested were appropriate considerations, being considerations which do not dictate how the discretion is to be exercised but provide guidance in its exercise, they may be properly considered in the exercise of the s 24(2) discretion. They are not ultra vires. They do not impermissibly raise, as a usual course, the prior attainment of permanent residence. That factor is expressly contemplated by the explanatory memorandum as a policy matter which may be reflected in guidelines to inform relevant administrative decision making.

6.      These principles apply with equal effect to the provisions of section 22(9) and the passage from the Instructions extracted above.

7.      In any event, a more pertinent question for me to consider in deciding whether the discretion in section 22(9) should be exercised in Mr Jiang’s favour is whether he had a close and continuing association with Australia during the relevant period.

did mr jiang have a close and continuing association with australia during the period 1 July 2006 to 30 June 2010?

8.      The genuineness of Mr Jiang’s relationship with his wife and his daughter is not in dispute.  Indeed, I am satisfied that the family is a mutually devoted one, notwithstanding its extensive and prolonged separations.  I accept the evidence of Mr Jiang, his wife Ms Gong and their daughter Ms Jiang in that respect.  I also accept the opinion of Mr Terry Smith, psychologist, that Mr Jiang and Ms Gong have maintained a continuous commitment to their marriage throughout its course.  I understand the Minister takes no issue with this.

9.      What I am required to be satisfied of, before I may exercise the discretion in section 22(9) in Mr Jiang’s favour, is that he had a close and continuing association with Australia during the period from 1 July 2006 to 30 June 2010 (the period).  Mr Jiang’s close association with his family is not in doubt.

10.     Mr Jiang’s evidence was that in 1996 he decided to settle his wife and daughter in Australia, having chosen between Canada and Australia.  The first business opportunity he seized in Australia was emu farming.  After three years he considered it had failed.  In 2000 Mr Jiang began exporting Australian water heaters to China.  He said he pursued this business until 2004 but found the heaters too expensive to sell in China and the business failed.  Mr Jiang said that when this happened he decided to put more energy into his China-based technology company, but said he had planned to do that anyway. Mr Jiang is now investigating mining in Australia.  He noted that the mining industry has a long business cycle and that it could take five to seven years to establish a business.

11.     Mr Jiang said he has two businesses in China – a mining company and what he referred to as a “technology company”.  Mr Jiang owns his mining company with his brother.  The mining company began operations in 2007, is based in China, employs no Australians, paid no tax in Australia and engaged in no activities or business in Australia during the period.  Mr Jiang said he has recently commenced negotiations with some Australian companies as part of his investigations into the industry here.

12.     Mr Jiang said his technology company is also owned with his brother and is based in China.  He said that, among other activities unrelated to Australia, the technology company has imported approximately 100 cartons of red wine from Australia.  The technology company has approximately 100 employees but none are Australian.  The company has paid no tax in Australia.

13.     Mr Jiang has paid no tax in Australia on his own account.

14.     Mr Jiang said he has been looking for business opportunities in Australia.  He said he has not applied for employment in Australia because he is more interested in starting a business than he is in working for other people.  He has never applied for a job in Australia, however he said he has assisted an Australian telecommunications company to expand into China.  I note that a letter dated 15 February 2011 from David Zhu, Global manager, Strategic trading, of Reach Voice Business attests to this.

15.     Mr Jiang also said, in his statement of evidence, that he is currently undertaking a doctoral degree at the Chinese Geology University. 

16.     Mr Jiang agreed that he had decided to remain overseas for financial reasons.  He said that when he visits Australia it is for the purpose of seeing his wife and daughter and also to look for business opportunities.  When asked if he has friendships in Australia, he said he does not; rather, he has business relationships.  He is a member of the Australian Chinese Business Association.

17.     Mr Jiang said he wishes to settle in Australia with his family and pointed to his investigations of mining opportunities in Australia in support of that intention.

18.     Soon after he applied for citizenship, Mr Jiang registered an Australian company.  He said he plans to use this company for the export of Australian wine that has previously been undertaken by his Chinese technology company.

19.     Ms Gong’s evidence was that the house in which she and her daughter live was purchased in her name only.  She explained that this was necessary because the purchase had to be concluded quickly to avoid being outbid by competing purchasers and Mr Jiang was not present in Australia to sign the necessary documents.  She and Mr Jiang have a joint Australian bank account into which he deposits funds for his wife’s and daughter’s support.

20.     To ground the required close and continuing association with Australia, Mr Jiang relies on his family association and his business associations. 

21.     Mr Jiang’s business associations with Australia are negligible.  That is particularly so when they are compared with his two thriving businesses in China, one of which employs approximately 100 people and both of which he owns with his China-based brother.  By his own evidence, his China-based businesses, and his studies at a University in China, take up all of his time.  That is why he has spent only 76 days in Australia over the 1461 day period – just 5% of the four year period.  His business association with Australia could not be described as close and continuing.

22.     Although Mr Jiang may have a beneficial interest in the house in which his wife and daughter reside, the property is owned in the name of his wife only.  I note Ms Gong’s explanation for this, but the fact remains that it was Mr Jiang’s absence from Australia that caused his exclusion from legal ownership of the property.

23.     Mr Jiang pays no tax in Australia, has not been employed or sought employment in Australia and, during the relevant period, conducted no business in Australia except for the importation of a small amount of Australian wine.  His evidence was that he has no friendships or social relationships in Australia.  He holds a bank account jointly with his wife.

24.     Mr Jiang’s stated intention to reside in Australia is believable but he has only very recently taken firm steps to do so through his investigations into mining in Australia and the registration of a company here.  Although he described himself as having an eye to business opportunities in Australia, he took no firm steps towards the establishment of a business here during the relevant period.

25.     In Minhas and Minister for Immigration and Citizenship [2011] AATA 388, the Tribunal found that Mr Minhas’ close ties with his family, his close and continuing association with them, did not establish a close and continuing association with Australia.  Mr Minhas had not resided in Australia during the relevant period, nor worked or studied here.  I consider Mr Jiang’s circumstances are analogous to those of Mr Minhas.  Like Mr Minhas, he is a visitor to Australia.

26.     In cases where the Tribunal has exercised the discretion in section 22(9) in favour of an applicant, additional aspects of association with Australia have been present, including:

·property ownership; studies at an Australian University; membership of professional associations; multiple applications for employment (Tanko v Minister for Immigration and Citizenship [2011] AATA 122); or

·ownership of, and work on, a farm; substantially more time spent in Australia in the relevant period; AusAID supported humanitarian work in family-unfriendly locations as the reason for absence from Australia (Wolstenholme v Minister for Immigration and Citizenship 115 ALD 219); or

·a senior position in an Australian export company; ownership of residential and investment property in Australia; payment of taxes in Australia; close friendships with Australians; and substantially more time spent in Australia in the relevant period (Sopronov v Minister for Immigration and Citizenship [2011] AATA 126)

27.     Mr Jiang’s association with Australia falls well short of these cases.  Mr Jiang’s commitment to his Australian citizen wife and daughter is not in doubt.  Theirs is clearly a strong marriage and a loving family, which has been since Mr Jiang and Ms Gong were married more than 20 years ago and would remain so regardless of where they each resided.  However, in the absence of close associations with Australia beyond his devotion to his Australian citizen family, I am not satisfied that Mr Jiang’s association with Australia is close and continuing.

decision

28.     The Tribunal affirms the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         .................[sgd[.......................
  Associate

Date of Hearing  11 August 2011
Date of Decision  6 October 2011
Solicitor for the Applicant          Mr R Killalea, Eddy Newman Lawyers
Solicitor for the Respondent     Ms P Hinton, DLA Piper