Tak Kwan Sie and Minister for Immigration and Border Protection
[2014] AATA 60
•7 February 2014
[2014] AATA 60
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4634
Re
Tak Kwan Sie
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 7 February 2014 Place Melbourne The Tribunal affirms the reviewable decision dated 4 September 2013.
(sgd) John Handley
Senior Member
CITIZENSHIP – Applicant a citizen of China – permanent resident of Australia ‑ wife and daughters Australian citizens ‑ general residence requirements not satisfied – whether discretion to treat period of absence as a period in which the applicant was present in Australia ‑ whether close and continuing association with Australia – decision affirmed.
LEGISLATION
Australian Citizenship Act 2007 ss 21, 22, 24(1A)
CASES
Re Sapronov and Minister for Immigration and Citizenship (2011) 120 ALD 362
Re Drake and Minister for Immigration and Ethnic Affairs No. 2 (1980) 2 ALD 634
Re Tan and Minister for Immigration and Citizenship (2011) 124 ALD 398Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Mr John Handley, Senior Member
Mr Sie is a citizen of China, living in Hong Kong, who has been granted permanent residency of Australia. He applied for Australian citizenship on 19 August 2013. A delegate of the Minister refused the application on 4 September 2013 (T2, p. 21-29). The applicant sought a review of that decision.
The delegate decided that the applicant did not satisfy the residency requirements under the Australian Citizenship Act 2007 (the Act). Additionally, the delegate decided that the discretion available to the Minister pursuant to s 22(9) of the Act should not be exercised.
The legislation
The general eligibility criteria for conferral of Australian citizenship are set out in s 21(2) of the Act. The requirements in paragraphs (c) and (g) are relevant to the applicant’s circumstances, namely, whether he:
(a)satisfied the general residence requirement found within s 22; and
(b)is likely to reside or to continue to reside, in Australia or to maintain a close and continuing association with Australia if his application were approved.
He will satisfy the general residence requirement, found within s 22, if:
(a)he was present in Australia for 4 years immediately before the day he made his application and was also present as a permanent resident for 12 months before the date of application (ss (1)(a) and (c)); however,
(b)if he had been absent from Australia for part of the 4 years immediately before he made his application but the total of his absence or absences did not exceed 12 months, he is to be taken to have been present in Australia during each period of absence (ss (1A)); or
(c)if he was absent from Australia for part of the period of 12 months before he made his application during which time he was a permanent resident and the total period of absence did not exceed 90 days he is taken to have been present in Australia during each period of absence (ss (1B)).
For reasons which will be recorded later, the applicant cannot satisfy the provisions immediately above. However, he is entitled to have his circumstances considered under s 22(9) which will allow the applicant to satisfy the general residence requirement, if, during the (4 year) period before his application for citizenship was made:
(a)his spouse was an Australian citizen; and
(b)he was not present in Australia; and
(c)he was a permanent resident; and
(d)the Minister is satisfied that the person had a close and continuing association with Australia during that period.
The Ministerial discretion contained within s 22(9) was not exercised because the applicant could not demonstrate a close and continuing association with Australia during the period. In these circumstances, the Minister was prohibited from approving the application for citizenship pursuant to s 24(1A) of the Act.
The evidence
The applicant was unrepresented and gave his evidence by telephone from Hong Kong. He did not call any other persons to support his application. The Minister was represented by Ms Montgomery-Hribar.
The applicant and his wife, Baozhu Chen are each 37 years of age. They have 2 daughters presently aged 5 and 2 years. The eldest daughter was born in Australia. Both children and the applicant’s wife are Australian citizens. The applicant lives with his wife and daughters in Hong Kong.
The applicant acknowledges he was absent from Australia for periods which totalled more than 12 months in the period of 4 years prior to his application being made (the four-year period). He also acknowledges that he was absent for a total period of more than 90 days in the period of 12 months prior to his application being made (the 12‑month period).
In the Statement of Facts and Contentions lodged by the respondent, it was contended that the applicant was present in Australia for 102 days in the four-year period (which is confirmed by the movement records ‑ T6, p. 153-155). It follows that he was therefore, absent from Australia for more than 12 months in that period.
It was also contended that the applicant had been present for 19 days in the 12-month period. On the basis of the movement records, I have calculated that the applicant was present for 17 days. However, the discrepancy with the Minister’s calculation is immaterial because the applicant was absent for more than 90 days in that period.
The applicant concedes that his application must be confined to a consideration of whether he had a close and continuing association with Australia within the terms of s 22(9) only, because he could not satisfy the general residence requirements of s 22 which must be considered in conjunction with s 21.
The applicant contended a number of bases for his close and continuing association with Australia, being:
·Ownership, jointly with his wife, of 3 residential properties in suburban Melbourne;
·his wife and 2 daughters being citizens of Australia;
·his brother and sister and friends residing in Australia;
·the intention of his parents who reside in Hong Kong to move to and reside in Australia;
·the recent registration of a company in Australia and an intention to develop business relationships in Australia; and
·a bank account held in Australia.
Residential properties
The applicant and his wife owned residential properties in Box Hill and Balwyn North prior to his application being made. They have subsequently purchased another property in Berwick in October 2013.
In his letter to the Tribunal of 22 October 2013 and in his evidence during the hearing, the applicant said that the house in Box Hill was intended to be a suitable location for his parents, when they immigrate to Australia, because a large Chinese population live in the district. The house in Balwyn North was purchased because it is close to a primary and secondary school where the applicant intends that his daughters would receive their education. The house in Berwick was purchased as the home where the applicant and his wife will reside when they retire.
Each of the applicant’s three properties is being leased and he is receiving rental income for them. A collection fee is paid to local real estate agents. The applicant and his wife have not declared the rental income to the Australian Taxation Office. In evidence, the applicant said that he did not believe he was obliged to declare the income because his wife and children, in Hong Kong, do not receive any benefits under the Australia social security system. He now acknowledges that belief is incorrect and whilst he does not have an accountant in Australia, he will make arrangements to locate and appoint such a person and declare the rental income.
The bank account held by the applicant had an opening balance of $230,000 at 9 April 2013 (T5, p. 102). The applicant said those funds were deposited from the sale of a property in Hong Kong. The monies held on deposit were intended for and were used to purchase the home in Berwick. The bank account remains current but now has a very modest balance.
Wife and children citizens of Australia
The applicant’s wife and two daughters are citizens of Australia. They have each been issued with an Australian passport (T5, p. 89, 91-92). The eldest daughter, who is presently 5 years of age was born in Australia. The applicant’s wife and eldest daughter lived in Australia for about 12 months during 2010. The applicant said he resided with his wife on a few occasions during that year. The movement records indicate that he resided, in Australia, with his wife and daughter for 3 periods during 2010, for an aggregate of 53 days (refer movement records at T6, p. 153 – the applicant was in Australia between 2 – 27 February, 1 – 14 May and 14 -29 August). The applicant said that was also an indication of his close and continuing association with Australia.
In a letter to the Tribunal dated 26 November 2013, the applicant submitted that his relationship with his wife and children who are Australian citizens is consistent with Government policy. (This issue with will be addressed later. Relevant policy concerning applications under s 22(9) is found at T4, p. 65-66).
The applicant’s brother and sister and friends residing in Australia
The applicant’s brother resides in Australia as a permanent resident. His sister resides here with a temporary resident visa which will convert to permanent residency in 2015. Apparently it is the intention of his brother and his sister to later apply for Australian citizenship.
The applicant said that he has friends and business associates who reside in Australia. He annexed to his letter of 22 October 2013 a chain of emails with a friend in Melbourne which contained discussions about the applicant and his family moving to Melbourne and advice from his friend about some possible residential locations.
The intention of the applicant’s parents to move to Australia
The applicant’s father and mother are 70 and 65 years of age, respectively. The applicant said in evidence that as their only son remaining in Hong Kong, he is under a duty to care for them. Accordingly, he cannot presently leave Hong Kong. The applicant and his wife and their children live with his parents who also care for the children during the day (refer letter of 22 October 2013, paragraph 1).
The applicant’s parents have applied for a parent visa to immigrate to Australia. It was learnt during the hearing that they will not be eligible to live in Australia on the basis of the visa that they have sought for another 13 years. The applicant said (and did record at paragraph 3 of his letter of 22 October 2013) that should he be granted citizenship, he will apply for a contributory parent visa which he understood would reduce the waiting period to allow his parents to lawfully enter and remain in Australia.
Accordingly, the applicant said that it was intended, at a future date that his brother, sister, both parents and he would become Australian citizens. He said this intention pointed to a close and continuing association with Australia because all of his family, together with his wife and children would be living here.
Registration of a company in Australia
In his application for citizenship the applicant appended a letter dated 6 August 2013 where he recorded that his wife was a shareholder and managing director of Vixtel Technologies (Beijing) Holdings Ltd (Vixtel Beijing) (T5, p.84). He recorded that she was therefore, obliged to remain in Hong Kong. He also recorded that he was hired as General Manager… to help my wife to manage the company and to stay with her and our two children. In a letter dated 1 August 2013, the HR Manager confirmed that the applicant had been employed by Vixtel Beijing from 1 December 2008 as general manager (T5, p. 148).
The applicant said that Vixtel Beijing was engaged in Hong Kong in software development. He was previously employed by Hewlett-Packard and was well experienced in the technology industry. He also has an association with former colleagues who live in Australia who have their own technology and software industries. He would hope, by being a citizen of Australia, that he could develop a commercial relationship with them. A corporation, Vixtel Technologies Pty Ltd (Vixtel Australia) was registered in Australia on 26 September 2013. The applicant said that if he was granted citizenship, the corporation in Hong Kong would sell its assets and would transfer them to Australia.
A bank account in Australia
The applicant has a current bank account with Bankwest (T5, p. 102). It held funds transferred from Hong Kong of $230,000 at 9 April 2013. Most of those funds were applied to purchase the Berwick property.
Policy
The Australian Citizenship Instructions (the ACIs) is the relevant Ministerial policy which provides guidance to decision-makers when exercising of the discretion at s 22(9) of the Act (T4, p. 54). Paragraph 5.18 of the ACIs records:
In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include but are not limited to:
·Australian citizen children
·long-term relationship with Australian citizen spouse or de facto partner
·extended family in Australia
·regular return visits to Australia
·regular periods of residence in Australia
·intention to reside in Australia
·employment in Australia where the person has been on leave to accompany their spouse or partner overseas
·ownership of property in Australia
·evidence of income tax paid in Australia over the past four years and
·evidence of active participation in Australian community based activities or organisations.
In assessing whether a person has a close and continuing association with Australia for the purposes of s. 22 (9)(d), it is policy that more weight should be given if the person has been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.
Conclusion and Reasons for Decision
I am not satisfied that the Minister’s discretion under s 22(9) should be exercised in favour of the applicant.
In reaching the following conclusions, I am mindful of the Minister’s policy and one of its criteria being an intention to reside in Australia.
In Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664, Deputy President McMahon considered the expression likely to reside within a Ministerial policy. In his decision, he found that the expression within the policy under his consideration should be interpreted to mean that the person is likely to reside in Australia immediately or very soon after citizenship is granted (at [31]).
Whilst not on all fours with the policy under consideration in this review, I am satisfied the expression intention to reside in Australia must mean, if not an immediate intention, an intention at least to reside with some reasonable proximity to the grant of citizenship.
The applicant has spent 102 days in Australia in the four-year period before he made his application for citizenship. Nothing points to him ever having worked, earned or generated income, employed persons, developed local or export markets, produced any product or paid income tax (refer ReSapronov and Minister for Immigration and Citizenship (2011) 120 ALD 362). Rental income has been received. It is not known whether those moneys were invested here or repatriated to Hong Kong.
The applicant has been the general manager of a corporation, Vixtel Beijing, in Hong Kong, which is owned by his wife, who is the managing director. Any economic activity generated by that corporation, whether it has involved employment of persons, production of income, payment of taxes and manufacture of goods, either for the domestic or an export market, has been largely for the benefit of the corporation and Hong Kong. The applicant’s time, energy and attention has been focused on that corporation, not on demonstrating or pursuing a close and continuing association with Australia. Vixtel Australia was incorporated after he made his application for citizenship. It has not commenced to trade.
Nothing points to the applicant having made any level of contribution to Australia, whether it be economic, social, academic, recreational, humanitarian, community, charitable or philanthropic. Although he regularly returned to Australia in 2009 and 2010, he remained here for very short periods. He did not return at all in 2011. His visits became more regular again in late 2012/early 2013 with a duration of five to ten days. The applicant remained in Australia for an aggregate of 53 days in 2010 when his wife and eldest daughter lived here. Except for 2010, I am satisfied that he has not resided here after 2009 as opposed to being a visitor.
His residential properties have generated rental income but it has not ever been declared to the Australia Taxation Office. The applicant said that not ever having received any benefits from the Australian government, he was not obliged to pay income tax. He acknowledged that belief to be incorrect and was prepared to declare his income. However, his failure to declare income and pay tax as is the obligation of Australian citizens does not support his contention of a close and continuing association with Australia in the period prior to his application. .
The ACIs record that having a spouse and children who are Australian citizens might demonstrate the requisite association. However, with the exception of a major part of 2010 when the applicant’s wife and eldest child lived in Australia, she and both children have lived with him, as a family in Hong Kong. The apparent intent of him wanting to live with his wife and children, almost exclusively in Hong Kong, is established by him only having been in Australia for 102 days in the four-year period before his application was made. His intent, as indicated by the movement records, of residing with his wife and daughter, in Australia, when they were here, does not point to him having had a close and continuing association with Australia in the requisite period. Rather it points to his devotion to his wife and children and his wish to reside with them but principally in Hong Kong.
Additionally, his wish to have all his family living in Australia, in the future, does not point to a close and continuing association, rather, it is aspirational, prospective and speculative.
The submission that his parents intended to migrate to Australia pointed to the likelihood of them residing here, must fail. When the intention of his parents was properly understood and explained at the hearing, it was learnt that they presently face a 13 year waiting period before they can arrive. Whilst they remain in Hong Kong the applicant, by Chinese custom, is obliged to care for them. It follows that they, and consequently the applicant, in the near future will not migrate to Australia. However, when that application was further explored, the applicant said that it was his intention, upon being granted citizenship, to apply, as a citizen, for his parents to qualify for and migrate here under a contributory parent visa where the waiting period would be about 2 years.
If that information held by the applicant is correct, it suggests his application for citizenship is influenced by the objective of hastening his parents’ migration to Australia. That may demonstrate that at some time in the future all or most of his family will be residing in Australia. However, it does not point to any likelihood of him residing in Australia in the near future.
His brother and sister may ultimately qualify as Australian citizens. Or they may not. Nothing is known about them or their circumstances or the status of their applications.
The applicant said that he would arrange to sell Vixtel Beijing and its assets and transfer them to Australia only after citizenship was granted. There was no evidence of how long that process would take. Significantly, there was no evidence that the process had started. His intention to wait until citizenship was granted before realising his assets in Hong Kong does not point to the likelihood of him residing in Australia in the near future and is not consistent with a close and continuing association.
The ACIs provide that in determining whether the applicant has a close and continuing association with Australia, ownership of property and evidence of an intention to reside in Australia are relevant considerations. The applicant asserted that the acquisition by him of residential properties, with the intention of being the residence of himself and his wife in retirement, (together with places of residence for his parents and his children), demonstrated an intention to reside in Australia. Additionally, one of the properties, where he and his wife would live during the infancy of his children, was located near a primary and secondary school which was the place where he intended that his daughters would be educated.
Those properties, not being occupied by him nor his family and his parents as he intends and without any reasonable prospect in the near future of being occupied by them, do not point to the requisite association. On his evidence, he will stay in Hong Kong to care for his parents and will continue to do so until they are permitted to reside here. That permission, on the evidence heard will not be given, if at all, within the next few years. In the interim, he is obliged to remain in Hong Kong to be available to his parents.
The ACIs record that when assessing whether a person has a close and continuing association with Australia for the purposes of s 22(9), greater weight should be given if the person has been lawfully and physically present in Australia for at least 365 days in the four-year period prior to the application for citizenship being made and 90 days in the 12-month period. The aggregate period spent by the applicant in Australia in the four-year period was 102 days which falls well short of the policy. I am not satisfied that there are any cogent reasons demonstrating that the policy should not be applied (ReDrake and Minister for Immigration and Ethnic Affairs No.2 (1980) 2 ALD 634 at 645).
An aggregate period of residence greater than 102 days in 4 years would have helped him demonstrate that he does have a close and continuing association with Australia and would have strengthened his application to seek membership of the Australian community as a citizen (also refer ReTan and Minister for Immigration and Citizenship (2011) 124 ALD 398 at [26-27]).
The delegate also decided that the applicant did not satisfy s 21(2)(g) of the Act. It is not necessary to consider this issue because the applicant concedes, and I agree, that this review is confined to s 22(9) of the Act.
Decision
For all of the above reasons, the discretion at s 22(9) should not be exercised in favour of the applicant because I am not satisfied, as a fact that he had a close and continuing association with Australia in the relevant period. I am also satisfied that a finding cannot be made of an intention to reside here that will reasonably be achieved in the near future. The application for citizenship cannot be approved pursuant to s 24(1A) of the Act. The decision under review will be affirmed.
I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member ............................[sgd]................................
Associate
Dated 7 February 2014
Date(s) of hearing 13 January 2014 Applicant In person Advocate for the Respondent Ms B. Montgomery-Hribar Solicitors for the Respondent Clayton Utz
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