Re Shen and Minister for Immigration and Citizenship
[2008] AATA 906
•8 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 906
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0397
GENERAL ADMINISTRATIVE DIVISION ) Re PAUL SHEN Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr S Penglis, Senior Member Date8 October 2008
PlacePerth
Decision The Tribunal affirms the reviewable decision dated 10 January 2008.
....(sgd) Mr S Penglis..........................
Senior Member
CATCHWORDS
Citizenship – application for Australian Citizenship made under the 1948 Act, and determined under the 2007 Act – held that there was no discretion to consider application other than under 2007 Act – applicant working in China to support family – present in Australia for only12 days in 2 year period prior to application and only 218 days in 5 years prior to application – held that applicant not likely to reside in Australia or to maintain a close and continuing association with Australia if application were to be approved – even if discretion had been enlivened under s 22(9) of the 2007 Act, it would not have been exercised in favour of the applicant – reviewable decision to refuse citizenship affirmed
LEGISLATION
Australian Citizenship Act 2007, ss 21(2), 22(1) and (9)
Australian Citizenship (Transitionals and Consequentials) Act 2007, Items (2), (7) and (8) of Part 1 of Schedule 3
Australian Citizenship Instruction, Chapter 5
CASES
Alavien and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 421 at [30]
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 at [31]
Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AAT 425 at [153]
REASONS FOR DECISION
8 October 2008 Mr S Penglis, Senior Member 1. The applicant was granted an Australian permanent resident visa in the late 1980s.
2. In 1991 he married Vilaiwan Pongchote, to whom he is still married.
3. In 1993 Ms Pongchote gave birth to the applicant’s son.
4. In or about 1994 the applicant purchased a house and a commercial property in Perth, both of which he sold in or about 1997.
5. The applicant, Ms Pongchote and their son then moved to Singapore in or about 1997, with Ms Pongchote and her son returning to Perth in 2001.
6. On 18 March 2004 Australian citizenship was granted to Ms Pongchote and the applicant’s son.
7. On 30 March 2004 the applicant entered Australia and applied for Australian citizenship on 5 April 2006. He wrote to the Minister for Foreign Affairs seeking employment on 6 April 2004, wrote to a public affairs recruitment company on 13 April 2004 and sent his curriculum vitae to the Vice-Chancellor of the University of Canberra in June 2004. On 25 June 2004 the applicant wrote to the Dean of Law at the University of Notre Dame seeking employment, and on 2 August 2004 he attended an interview for a position at Murdoch University. All of the applicant’s efforts to find employment in Australia were unsuccessful.
8. On 11 August 2004 the applicant’s application for the grant of Australian citizenship was refused.
9. Around that time an opportunity presented itself for the applicant to teach at the Science and Technology Management College in Shanghai, China. He left Australia to take up that position on 25 September 2004.
10. In November 2006, in addition to his teaching position at the Science and Technology Management College in Shanghai, the applicant commenced employment as an associate professor at the Shanghai University.
11. On 1 May 2007 the applicant entered Australia and made a second application for citizenship on 4 May 2007. He returned to Shanghai on 8 May 2007.
12. In the period between leaving Australia for Shanghai in September 2004 and returning in May 2007 to make his second application for Australian citizenship, the applicant returned to Australia only once, namely for a one week period from 5 – 12 August 2005.
13. On 10 January 2008 the applicant’s application for the grant of Australian citizenship was refused, that being the reviewable decision the subject of this application.
14. For the sake of completeness, I also note that:
· On 27 January 2008 the applicant filed the within application;
· On 20 June 2008 the applicant sought an extension of time to seek review of the 11 August 2004 refusal of his first application for Australian citizenship;
· On 25 July 2008, Deputy President Hotop dismissed the applicant’s application for an extension of time to seek a review of the 11 August 2004 decision.
The Legislative Framework
15. Subitems 7(2) and (7) of Part 1 of Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitional Act) relevantly provide 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.
(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 or the old declaration, as the case requires, was made under the old Act.”
16. The “old Act” is a reference to the Australian Citizenship Act 1948 (1948 Act), which continued in force until 1 July 2007, the commencement day of the “new Act” being the Australian Citizenship Act 2007 (2007 Act).
17. It therefore follows that, whilst the applicant’s application for citizenship was made on 4 May 2007 under the 1948 Act, as it had not “been decided immediately before” the “commencement day”, namely 1 July 2007, the applicant’s application was therefore taken to be an application to become an Australian citizen made under s 21 of the 2007 Act.
18. Subsection 21(2) of the 2007 Act relevantly provides as follows:
“A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged 18 or over at the time the person made the application; and
(b) is a permanent resident at that time; and
(c) understands the nature of the application at that time; and
(d)satisfies the residence requirement (see section 22), or has completed relevant defence service (see section 23), at that time; and
(e)possesses a basic knowledge of the English language at the time of the Minister’s decision on the application; and
(f)has an adequate knowledge of the responsibilities and privileges of Australian citizenship at the time of the Minister’s decision on the application; and
(g)is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved; and
(h) is of good character at the time of the Minister’s decision on the application.
19. Sub-item 7(8) of Part 1 of Schedule 3 of the Transitional Act provides as follows:
“(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.
(2) Paragraph (1)(b) does not apply if the person:
(a) was born in Australia; or
(b)was an Australian citizen at any time before the person made the application.
(3)For the purposes of subsection (1), the Minister must not take into account any period during which the person has been:
(a) confined in a prison; or
(b)confined in a psychiatric institution by order of a court made in connection with proceedings for an offence against an Australian law in relation to the person.
(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.”
20. Subsection 22(9) of the 2007 Act provides as follows:
"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.”
21. The relevant provision of the Australian Citizenship Instruction relating to sub-section 22(9) of the 2007 Act reads as follows:
“Periods spent overseas by a permanent resident who is a spouse, de facto spouse, widow or widower 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 ought 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 (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.”
22. Whilst the Tribunal is not bound by Departmental guidelines/policy, the Tribunal should follow Ministerial or Departmental guidelines/policy unless there is some good reason not to: Buijota and Minister for Immigration and Multicultural Affairs [2003] AATA 10 at [58].
23. The expression “likely to reside”, in the context of the 1948 Act, has been held to mean “likely to reside in Australia immediately, or very soon after, being granted a certificate of Australian citizenship”: Re Ho and Minister for Immigration and Multicultural Affairs [1994] 34 ALD 664 at [31] as applied in Taechaubol and Minister for Immigration and Multicultural Affairs [2001] AAT 425 at [153] and in Alavian and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 421 at [28] and [29].
Application must be determined under the 2007 Act
24. The applicant submitted that, because it was his second application, the respondent had ample time in which to determine his application made in early May 2007 before the 2007 Act commenced in operation. He said the respondent’s delay in processing the application, in respect of which he later obtained a letter of apology, had prejudiced him and that notions of equity, good conscience and fairness dictated that his application be dealt with under the provisions of the 1948 Act.
25. I consider all of this to be irrelevant given that the respondent, and therefore the Tribunal, has no discretion in the matter. Subitems 7(2) and (7) of Part 1 of Schedule 3 of Transitional Act mandate how an application made under the 1948 Act which had not been decided immediately prior to 1 July 2007 is to be dealt with, namely as an application under the 2007 Act. There are no exceptions to this.
26. It is therefore unnecessary for me to make any findings, and thereby detail the evidence, relating to the timeliness or otherwise of the respondent’s processing of the applicant’s application for the grant of Australian citizenship. However, given the criticisms made of the respondent by the applicant, I note that:
· There was nothing before me whereby I could have concluded in favour of the applicant (if it were relevant) that the respondent could have and should have processed the application within a period of just under 2 months;
· Indeed, to the contrary, the letter of apology to which the applicant referred included the following paragraph:
“Due to the extremely large number of concessional applications lodged with this Department prior to the 1 July 2007 legislative changes, the processing time frame has increased considerably”.
If anything, that militates against the proposition that the respondent could have and should have dealt with the applicant’s application prior to 1 July 2007;
· The letter of apology is dated 8 November 2007 and apologises “for the delay that you have experienced in the processing of your application”. In other words, it is an apology for the fact that the application had not been processed as at 8 November 2007: it is not an apology for not having processed the application prior to 1 July 2007.
Findings under the 2007 Act
27. The respondent’s case, in short, was that neither s 21(2) (d) or (g) were satisfied.
28. As to 21(2)(d), the respondent contended that the applicant did not satisfy the “residence requirement” because:
· the period 2 years before the date the applicant applied for citizenship commenced on 5 May 2005 and ended 4 May 2007. During this period the applicant was in Australia for 12 days only, which is significantly less than the 1 year prescribed;
· the period 5 years before the date the applicant applied for citizenship commenced on 5 May 2002 and ended 4 May 2007. During this period the applicant was in Australia for 218 days, which is significantly less than the 2 year period prescribed.
29. It was therefore submitted on behalf of the respondent that the applicant needed to “make up the shortfall by one of the other sections”, and that he could not do so. It was submitted on behalf of the respondent, and the applicant did not dispute, that none of the transitional subsections other than (9) were arguably capable of being satisfied on the facts and thus assisting the applicant “to make up the shortfall”.
30. The focus therefore was on s 22(9).
31. On behalf of the respondent it was conceded that the applicant satisfied subsections22 (9) (a), (b) and (c). It was submitted, however, that the applicant did not satisfy (d) as he did not have “a close and continuing association with Australia during that period”. In this regard specific reference was made to the Australian Citizenship Instruction. It was submitted that, at most, during the relevant period, the applicant could establish an Australian citizen spouse and an Australian citizen child and a significant length of relationship with the Australian citizen spouse (some 17 years). However, it was submitted that he could not satisfy any of the other criteria, alternatively, if the Tribunal was satisfied of the applicant’s “intention to reside in Australia”, that could only have applied until September 2004 when, to use the words of Counsel for the respondent, the applicant “gave up” on finding employment in Australia and took up employment in China.
32. It was also submitted on behalf of the respondent that even if the Tribunal were to be that the applicant had a close and continuing association with Australia during the relevant period required to make up the number of days required, that merely enlivened the discretion. It was submitted, that in all the circumstances, the discretion ought not be exercised in favour of the applicant having regard to the policy that the discretion “would usually only be exercised if the applicant was overseas with their Australian citizen spouse or their de facto spouse”.
33. In this regard Counsel for the respondent referred to the second reading speech of the 2007 Act on 9 November 2005 in which the then Minister for Citizenship and Multicultural Affairs said, amongst other things:
“In the future, up to two years spent outside Australia as a permanent resident or in Australia as a temporary resident may be treated as time spent in Australia as a permanent resident, provided the person has been involved in activities beneficial to Australia. These applicants will therefore need to have spent a minimum of 12 months in Australia as a permanent resident.
There will be only two circumstances in which a person will be exempt from the requirement to spend at least 12 months as a permanent resident.
The first circumstance involves the spouse of an Australian citizen. Some spouses have very close family and other connections with Australia but find it difficult to accumulate the necessary time as a permanent resident in Australia because they accompany their Australian family overseas – for example, in association with their spouse’s employment. The definition of ‘spouse’ for the purpose of this provision will include a de facto spouse.
The second situation already exists in the legislation and allows for periods of lawful temporary stay in Australia to be treated as permanent residence where a person would suffer significant hardship or disadvantage if not allowed to become a citizen.”
34. The applicant submitted that the circumstances of his case did establish that he “had a close and continuing association with Australia” within the meaning of subsection 29 (9) and that the discretion ought be exercised in his favour, not only having regard to the reasons for him not being in Australia, but also having regard to the inequity of his application not having been dealt with under the 1948 Act in which he considered to be a timely manner.
35. The starting point is to note that satisfaction of 29(9)(d) requires satisfaction that the person “had a close and continuing association with Australia during that period”. The concluding words are clearly a reference to the period when the permanent resident was not present in Australia which needs to be added to the period in which the applicant was in Australia to satisfy “the resident requirement” in s 22 (which by reason of the Transitional Act, is 1 year in the 2 years preceding the application and 2 years in the 5 years preceding the application). In this case this translates to some 357 days in the period 5 May 2005 to 4 May 2007 and some 511 days in the period 5 May 2002 to 4 May 2007.
36. When the applicant left Australia for China in September 2004, until at the earliest 1 May 2007 (when the applicant entered Australia for the purpose of applying again for Australian citizenship), I do not consider him to have had an “intention to reside in Australia” within the meaning of the Australian Citizenship Instruction. Whilst I accept that the authorities to which reference has been made in this decision relate to the 1948 Act, I see no reason why they ought not be applied to the like words where they appear in the Australian Citizenship Instruction relating as they do to a similar concept to that to which they applied under the 1948 Act. Whilst I accept the applicant’s evidence, and find that the applicant during that period intended to reside in Australia at some time in the future, his stated intention was to reside and work in China during that period.
37. Accordingly, in respect of the 2 year period immediately preceding the applicant’s application, the only factors referred in the Australian Citizenship Instruction which the applicant satisfied were his Australian citizen spouse, his Australian citizen child and a significant length of relationship with the Australian citizen spouse.
38. I do not consider that to be sufficient to establish a “close and continuing association with Australia during that period”.
39. Indeed, the only real association the applicant had with Australia is that that is where his wife and child lived. He had no property in Australia, no bank account in Australia, earned no income in Australia and, most importantly, spent virtually no time in Australia. While I accept the applicant’s evidence, and find, that his reasons for that were related to work and finances, that does not change the fact that his time in Australia was only 9 days in 2 years.
40. Even if I had held on the facts subsection 22(9)(d) to have been satisfied, I nevertheless would not have exercised the discretion in favour of the applicant. The applicant’s absence from Australia was not because he was overseas with his Australian citizen spouse. In this regard I not only refer to the policy statement apparent from the Australian Citizenship Instruction itself, but also to the second reading speech of the 2007 Act.
41. Having said that, however, I note that the policy is not exhaustive as a result of the word ‘usually’ in the expression “would usually only be exercised”. Accordingly, whilst regard must be had to the policy behind the legislation, the Australian Citizenship Instruction itself contemplates that circumstances may exist where the discretion is exercised notwithstanding that the absence from Australia was not as a result of being overseas with an Australian citizen spouse.
42. I do not consider the facts of this matter to be exceptional so as to warrant the exercise of the discretion notwithstanding that the policy, albeit not exhaustive, was not satisfied. This is particularly so given that the facts are not a failure to satisfy the resident requirement by only a few days, but a failure to satisfy the resident requirement almost in its entirety.
43. For the reasons which I have already given as to the proper interpretation of the expression “likely to reside” with respect to the Australian Citizenship Instruction, I find that the applicant is not a person within the meaning of “who is likely to reside or continue to reside, in Australia” within the meaning of those words as they appear in subsection 21(2) (g) of the 2007 Act.
44. It therefore follows that, for these reasons, the reviewable decision must be affirmed.
45. Notwithstanding, I wish to make some remarks about the genuineness of the applicant in his desire to live with his family in Australia, to work in Australia and become an Australian citizen.
46. The applicant was cross-examined with respect to his stated reasons for having lived apart from his wife and son for so long, the reason why he spent so little time in Australia since 2001 and the genuineness of at least one of his applications for work (namely the application to Department of Foreign Affairs).
47. Having given careful consideration to the applicant’s evidence, the evidence of the applicant’s wife (which was entirely supportive of and consistent with the position and evidence of the applicant), and having observed the candid and forthright manner of the applicant, both from the bar table and during the course of his evidence, I am left with no doubt as to the genuineness of the applicant and his stated desires and intentions. It is the Tribunal’s hope that, through this matter and these reasons for decision, the applicant will now have a better appreciation as to what he needs to do in order to put him in a position where any future application for Australian citizenship which he might make may enjoy greater prospects of success than his previous applications.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member
Signed: (sgd) T Freeman...................
AssociateDate of Hearing 22 September 2008
Date of Decision 8 October 2008
Applicant’s representative Self-represented
Counsel for the Respondent Mr S Thackrah
Solicitor for the Respondent Australian Government Solicitor
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