Thuy Nga Nguyen and Minister for Immigration and Border Protection
[2014] AATA 945
•19 December 2014
[2014] AATA 945
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6451
Re
Thuy Nga Nguyen
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal John Handley, Senior Member
Date 19 December 2014 Place Melbourne The decision under review is affirmed.
[sgd]........................................................................
John Handley, Senior Member
IMMIGRATION AND CITIZENSHIP - Application for citizenship by conferral; applicant a citizen of Vietnam granted permanent residency of Australia - married in 1999 to an Australian citizen; both have subsequently lived in Vietnam save for short visits to Australia - applicant has spent 96 days in Australia in the period of 4 years before the application was made - applicant assists and supports her husband in his commercial and charitable work - whether applicant likely to reside in Australia or maintain a close and continuing association with Australia if the application were to be approved - decision affirmed
Legislation
Australian Citizenship Act 2007 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
Australian Citizenship Instructions
REASONS FOR DECISION
John Handley, Senior Member
The applicant, a citizen of Vietnam who has been granted permanent residency in Australia, has applied for a review of a decision made on 12 November 2013 to refuse conferral of Australian citizenship.
This application is distinguished from many other applications reviewed in this Tribunal for citizenship by conferral. The applicant and her husband, Patrick Downey, an Australian citizen, have both lived overseas for many years and continue to do so.
The legislation
The relevant provisions within the Australian Citizenship Act 2007 (the Act) are as follows:
General eligibility
S.21(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
…
(c)satisfies the general residence requirement…
…
(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;…
The meaning of the expression general residence requirement is found within s. 22 of the Act and is reproduced as follows:
(1)Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if
(a)the person was present in Australia for the period of 4 years immediately before the day the person made the application; and
(b)the person was not present in Australia as an unlawful non-citizen at any time during that 4 year period; and
(c)the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
Section 22(1A) and (1B) refer to circumstances where persons who have been absent from Australia for defined periods may be deemed to have been present during those periods. Those subsections are reproduced as follows:
(1A) If:
(a)the person was absent from Australia for a part of the period of 4 years immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 12 months;
then, for the purposes of paragraph (1)(a), the person is taken to have been present in Australia during each period of absence.
(1B) If:
(a)the person was absent from Australia for a part of the period of 12 months immediately before the day the person made the application; and
(b)the total period of the absence or absences was not more than 90 days; and
(c)the person was a permanent resident during each period of absence;
then, for the purposes of paragraph (1)(c), the person is taken to have been present in Australia as a permanent resident during each period of absence.
The Minister is empowered with a discretion, in the circumstances found within s. 22(9) as follows:
Ministerial discretion-spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen
(9)If the person is the spouse, de facto partner or surviving spouse or a 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.
Facts not in contention
The documents received into evidence and the parties evidence in this review indicate the following matters are not in issue:
(i)the application for citizenship was made on 22 October 2013[T-docs p 16 &17];
(ii)the applicant was married to Patrick Downey, an Australian citizen, on 24 February 1999 (T documents page 7 and Applicant’s Statement of Facts and Contentions) or lived together in a marriage like relationship from 1999 (their marriage was registered on 1 November 2007 (T documents page 67 & 91).
(iii)in the four years prior to making her application, the applicant spent 96 days in Australia. In the 12 months prior to making her application, she spent 42 days in Australia;
(iii)the applicant was granted permanent residency on 4 June 2010.
What is a period to which s. 22(9) refers?
Section 22(9) empowers the Minister to treat a period outside or away from Australia as if the person was present, subject to meeting the conditions set out in subsections (a), (c) and (d).
The Minister’s contentions at paragraph 24 of his Statement of Facts and Contentions and the delegate's decision (T documents, page 20) suggest the inquiry into the period when the applicant was outside or away from Australia is confined to the period of four years before the date of application for citizenship. Although not explained it is consistent with s. 22(1). On that basis, the periods of absence are deemed to be periods where the applicant was present.
However, the person must be a permanent resident during that period (s. 22(9)(c)).
The applicant was granted a temporary partner visa on 29 December 2009 and a permanent partner visa on 9 March 2010 (T documents pages 17 and 19). She was granted permanent residency on 4 June 2010. The period of permanent residency, between 4 June 2010 and 22 October 2013 was three years and four and a half months. The applicant was, therefore, not a permanent resident during the period commencing 22 October 2009 to 3 June 2010. Nonetheless, the delegate decided that during the period of four years commencing on 22 October 2009, the applicant was a permanent resident (T-documents page 20). That was not explained.
Neither party raised this issue during the review. Even if the earlier periods during which the applicant held a visa as a partner are aggregated by provisions elsewhere in the Act or Regulations or some other lawful mechanism, the resulting period is about two months short of four years. I will proceed with this review as if the applicant was a permanent resident throughout the relevant period, as the delegate found and the Minister’s representative did not dispute. (This uncertainty could be avoided if the applicant could have satisfied s22(1B). However, the aggregate of her absences in the 12 months before she made her application was more than 90 days).
The decision to reject this application, and the manner in which it was contested, was principally confined (as if s. 22(9)(a), (b) and (c) had been met) to the issue of whether the applicant had a close and continuing association with Australia, during that period. That is, the period when she was outside or away from Australia. This issue mirrors part of s. 21(2)(g) which was the subject of contentions at the hearing. The remaining part – whether the applicant was likely to reside – described by the delegate as an intention to reside in Australia in the near future, was found to be not satisfied in the absence of substantial evidence (T documents page 21).
The contentions of the Minister
In this application the Minister contends, in his Statement of Facts and Contentions (paragraph 5 and 26), that the applicant does not satisfy:
·the general residency requirement found at s. 22(1); and
·the requirement of s. 21(2)(g) that she 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
·section 22(9)(d).
In closing submissions, Counsel for the Minister contended that if the applicant satisfied s 22(9), her eligibility would also be subject to satisfying s. 21(2)(g), namely that she 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.
Section 21(2)(g), is drafted in the alternative. If the person is likely to, or to continue to reside in Australia, the subsection is satisfied. Alternatively, it may be satisfied if the person maintains a close and continuing association. Section 22(9)(d) does not require an applicant to maintain, rather it requires an applicant to have had a close and continuing association.
The general residence requirement
The applicant could avoid having to satisfy the general residence requirement as found within s. 22 of the Act, if she can satisfy the Minister that the discretion within s. 22(9) should be exercised. All four requirements must be satisfied. In this application, it was contended, with some vigour, that the applicant cannot establish that she had a close and continuing association with Australia during the period that the Minister might otherwise deem her to have been present.
Policy
The Minister has published a policy to guide him in the exercise of the discretion available to him under s. 22(9) of the Act. The policy in so far as it concerns the discretion – part 5.18 of the Australian Citizenship Instructions (ACI’s) – is found at page 53 of the T documents. Relevant parts of it are reproduced as follows:
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 citizenship 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 a 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 section 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 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.
The Minister has also published a policy in relation to s. 21(2)(g), which has factors that may assist in determining whether a person may contribute to a close and continuing association with Australia – part 5.7 of the ACI’s. They are drafted in very similar terms to part 5.18 above.
The review process
The Tribunal must have regard to the policy of government and treat it as a relevant factor in making its decision but not as a substitute for statutory intention. Additionally, the Tribunal will not determine the review on the basis of the material that was before the decision maker. The Tribunal is obliged to make the correct or preferable decision on the material before it at the time of the review (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589). In Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37] Kirby J, in his analysis of the role of the Tribunal in merits review decided it was for the Tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.
I am obliged, as stated in the decisions of the High Court above, to decide the outcome of this review on the evidence heard and read at the date of the hearing. Regard will be had to the material before the delegate and the primary decision; however, the decision maker did not have before him all of the material lodged and exchanged for the purpose of this review, nor was he aware of the evidence of the applicant and her witnesses, which was subsequently heard during this review.
The evidence
The applicant and her husband gave evidence by telephone from Vietnam. Prior to the hearing, the applicant filed 27 letters from persons supporting her application. A number of those persons gave evidence both in person and by telephone. The applicant did not lodge a statement. A letter (Exhibit A8) signed by her recorded she relied on the contents of a letter written by her husband. Both the applicant and the Minister’s representative lodged a Statement of Facts and Contentions. The applicant was not legally represented but was assisted during the hearing by Mr Andrew Helps, the managing director of Hg Recoveries Pty Ltd. He also gave evidence.
Fourteen of the letters that were lodged supporting her application were virtual facsimiles. Ten of the people who signed the letter were residents in Australia. Both the applicant and her husband obfuscated their response when asked questions concerning the origin of the letters. Eventually the applicant’s husband admitted that he had prepared them and sent them to each of the signatories seeking support for his wife’s application. Each letter refers to him and his period of residence and work in Vietnam and surprise at the refusal to grant the applicant citizenship because she had a desire to live permanently in Australia since her first visit in 1999. The letters also recorded her preference to be with her husband because of his work and activities in Asia and a recommendation that the appeal be allowed so that they can proceed with their plans to relocate permanently to Australia.
None of the signatories of those letters were called. Having regard to the origin of those letters, the content of the letters will attract little weight, save for one aspect to which I will refer later in this decision.
The applicant is 58 years of age. Her husband is 76. They were married in Vietnam in 1999.
The applicant attempted to leave Vietnam, many years ago, as a boat person but was apprehended and returned to the mainland. She was detained for a period of time in a re‑education facility. She does not trust the Government in Vietnam who denied her a passport until 1999. Despite her stated intention and preference to live in Australia, she continues to live in Vietnam with her husband who is engaged in commercial and charitable activities.
The applicant agreed that as a permanent resident of Australia, she is entitled to live here. However, she was concerned, in the absence of being granted citizenship, that her status as a permanent resident could be revoked. Mr Downey said that his wife does not trust governments and is in fear of her permanent resident visa being revoked. In those circumstances, his wife would not live here unless she was granted citizenship.
The applicant has never resided here but has travelled to Australia on a number of occasions, each of short duration, the first trip being in 1999. On each of those occasions she has travelled with her husband. She has, on those occasions, met a number of her husband’s family members and his friends. Some of them signed the letters completed by the applicant’s husband.
The applicant does not have any children who are Australian citizens nor does she have any extended family in Australia, other than a nephew, Binh Nguyen Quoc, who lives in Melbourne. He is the son of her sister, who lives in France. (The applicant has another sister who lives in Canada and a brother living in the United States). She has spent periods of time with Mr Quoc on the occasions that she has travelled to Australia. In 1997, Mr Quoc lived with the applicant for about six to eight months whilst he was working in Vietnam.
The applicant has not worked in Australia, paid income tax or has any bank accounts here. She does not own any property in Australia, but ironically, when she and her husband were in Melbourne last year looking to purchase a home, the decision was made to reject her application for citizenship. She has not actively, or at all, participated in community-based activities or organisations in Australia.
Whether the applicant is likely to reside in Australia, or maintain a close and continuing association with Australia, if her application for citizenship is approved, needs to be considered by examining the reasons for her continuing to live in Vietnam despite being granted permanent residency more than three years ago.
The applicant is married to an Australian citizen, Patrick Downey, who continues to live in Vietnam. She was asked on a number of occasions why she continued to live in Vietnam and her responses – I live with my husband; I would live in Australia if he did; I always follow him – clearly point to her wish to continue to reside with her husband.
I do not doubt that Mr Downey is well-known and well regarded in Vietnam in professional, humanitarian and social circles. He was instrumental in establishing the Australian Chamber of Commerce (AusCham) in Ho Chi Minh City (HCMC) in the early 1990s.
The AusCham website ( records many well-known Australian companies as corporate sponsors, including major banks, accountancy, construction, insurance and transport companies. Other recorded supporters include the Australian Government and the Australian Embassy in Hanoi. The Australian coat of arms is reproduced on the website. The social arm of AusCham, Sundowners, advertises regular social events where members and non-members are encouraged to attend and engage in Auscham networking. The applicant frequently attended those events.
In a letter written by Mr Downey in support of the applicant’s claim for citizenship dated 10 August 2013 (T documents pages 69 and 70), he recorded his association with a number of Ambassadors and staff of the Australian consulate in HCMC. He also referred to his time in Vietnam helping Vietnamese maximise their potential.
That evidence was corroborated by Mr Helps, in a letter dated 1 May 2014 (Exhibit A4) where he recorded that Mr Downey is recognised as a dedicated and true Australian who has spent a large part of his time fostering trade relationships with Asia for Australia. Ms Christine Byrne, the admissions manager of the International School of HCMC in an undated letter (Exhibit A6) recorded that Mr Downey has been successful in his business, he works tirelessly to support Australian business and Australian Government Trade Missions to HCMC and he provides mentoring to young Vietnamese in business in international expectations to further develop abilities for economic ties between Vietnam and Australia. Ms Fiona Terry, the manager of Human Resources for the RMIT University in Vietnam recorded in a letter dated 25 April 2014 (Exhibit A7) that Mr Downey and the applicant have been true champions for Australian business in Asia, especially in Vietnam. Mr David Carter, the CEO of Odyssey Resources Ltd in a letter dated 25 April 2014 (Exhibit A5) recorded the ongoing globalisation of work location is an issue that should be addressed and supported by Australia. It would seem to me that it is in Australia’s best interest to ensure that Patrick and Nga continue to contribute to the Australian community and Australian businesses in Vietnam for as long as possible pre their retirement….
All of the above persons, and the authors of a number of other letters received into evidence, also spoke in very positive terms of the work undertaken by the applicant, not only in supporting her husband in his activities promoting Australian business in Vietnam, but also acting as an interpreter and giving cultural advice and assistance to Australians, both settled and as new arrivals, in Vietnam. The applicant has also been engaged socially with AusCham and regularly participates alongside many Australian ex‑pats in events recognising Australia Day, ANZAC day and Melbourne Cup Day. She has also been known to sing the Australian National anthem and knows all of its words. Some of the witnesses said that she is regarded as a member of the Australian community.
Conclusion and reasons for decision
A feature of this review was Mr Downey’s correspondence and his evidence of frustration with the decision under review. He asserted that he was treated as a second class Australian citizen by the refusal to grant citizenship to his wife; that he had been granted citizenship when he was 17 years old and he had volunteered for National Service and fought in Vietnam. Many references were also made to his unhappiness with the decision making process, the legislation and current immigration policy, as he understands it but which need not be repeated.
I acknowledge and regret Mr Downey holds the views he has expressed but this review concerns an application by his wife and it is her circumstances which must be considered.
Consideration of the elements making up s. 21(2)(g) namely, whether the applicant for a grant of citizenship is likely to reside, or to continue to reside in Australia or maintain a close and continuing association with Australia is to be determined if the application were to be approved. It follows that there must be an examination, of an applicant’s past and present circumstances and conduct. Unless that occurs, it is impossible to determine whether a person is likely to reside or to continue to reside in Australia. Equally, it would be impossible to determine whether a person will maintain a close and continuing association with Australia.
The words continue, maintain and continuing association suggest a degree of past and present, if not intimacy then at least a connection with Australia – the country, as opposed to some of its citizens –and probably, presence to some degree in Australia. Being granted membership of the Australian community as a citizen is discretionary, a privilege and upon trust that the person will honour the expectation of the legislation, in this case, of being likely to or to continue to reside here and to maintain a close and continuing association with Australia (in the case of s22(9)(d) to have had a close and continuing association with Australia).
The Minister relied on the Tribunal decision in Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 at [31] where it was decided that the expression likely to reside in Australia means that the Minister must be satisfied that an applicant is likely to reside immediately or very soon after being granted a certificate of Australian citizenship.
Even if I were to accept the definition of likely found within the Macquarie dictionary (5thEd.) being probably or apparently going or destined to do, which has a lesser degree of immediacy than the interpretation in Re Ho above, from the evidence in this review, I could not be satisfied that the applicant is likely to reside in Australia if her application were to be approved.
The applicant’s reasons for not living in Australia were a combination of i) choosing to live with her husband in Vietnam and continuing to do so whilst he is based there; ii) waiting for the outcome of this review before deciding to move to Australia and iii) choosing to continue to live in Vietnam and not being prepared to live in Australia as a permanent resident because the risk of that status being revoked does not offer what she understands to be the security of citizenship.
I am not satisfied that any of those explanations instil any confidence that the applicant is likely to reside in Australia if her application was approved.
She is dependent upon her husband giving up his residence of more than 20 years in Vietnam and returning to Australia. She is seeking to be treated differently to other applicants for citizenship by relying on the discretionary provisions of s. 22(9), unlike other applicants (under s. 22(1A) or (1B)) who have been absent overseas and do not enjoy the potential benefit of the Ministers discretion.
Additionally, whilst I accept that she was badly treated by the regime in Vietnam, many years ago, and has a continuing distrust of governments, including the Australian government (in so far as she regarded her status as a permanent resident to be insecure). If there was any insecurity-of which there was no evidence-I would have thought that living would be far more likely to the Minister to exercise his discretion than living elsewhere. At least by living here she could show that she was continuing to reside (s21(2)(g)).
The applicant had the opportunity of purchasing real estate as an intended place of residence when she was in Melbourne last year. She abandoned that pursuit and returned to Vietnam when she learnt that her application was refused. If she and her husband were likely to reside in Australia, if not immediately but at least eventually, ownership of property might give confidence that there was a likelihood of residing in Australia if the application were approved.
The applicant cannot satisfy the remaining residency element within the subsection namely to continue to reside because she does not reside nor has she ever resided in Australia. The applicant has travelled to Australia on a number of occasions as a visitor and then for very short durations.
As referred to earlier, I have acknowledged that the applicant’s circumstances are inextricably woven into the circumstances of her husband. Put another way, her commitment to him and their marriage is so strong that she will continue to remain with him in Vietnam. In the alternative, if he decided to come to Australia I am satisfied that she would also move here with him. In those circumstances, the explanations given by him for continuing to reside in Vietnam – and therefore whether there is a likelihood that she will reside in Australia if she is granted citizenship – need to be considered.
Mr Downey has lived in Vietnam for over 20 years. He has had and continues to have significant involvement in the Australian Chamber of Commerce in HCMC and with a significantly large group of Australian ex-pats, both professionally and socially, who hold him in high regard. He is also engaged in charitable work, often on a pro bono basis.
In evidence he said that he retired in 2003 or 2004, yet he and the applicant continue to live in Vietnam. Despite returning to Australia last year to search for a home to purchase, when her application for citizenship was rejected, he and the applicant felt it best to return and decide what to do. He said that he and his wife have presently deferred making a decision about whether to return to Australia and he has continued to engage in his commercial and charitable activities which he finds satisfying. He said when his wife made her application for citizenship, he wound down his activities but he has subsequently resumed them. This suggests that Mr Downey has not, in fact, retired.
Mr Helps lodged written submissions shortly after the conclusion of the hearing. At paragraph 17 he recorded that if citizenship were granted, both the applicant and Mr Downey were prepared to enter an undertaking that they will re-locate to Australia as soon as they can finalise their Vietnam commitments and sell their properties and either rent or buy a house.
The concluding paragraph of the facsimile letters which were prepared by the applicant’s husband and signed by his friends recorded a recommendation that the appeal should succeed to allow the applicant and her husband to proceed with their plans to relocate permanently to Australia. That is similar to Mr Helps’ submission, namely, if citizenship is granted the applicant and her husband will then make arrangements to end their commitments in Vietnam and commence arrangements for their return to Australia.
The applicant said she will relocate to Australia but it is contingent upon her being granted Australian citizenship. That is a very odd way to demonstrate that she is likely to reside in Australia. It also excludes the opportunity to live here, which she can as a permanent resident and therefore demonstrate she is continuing to reside here. In the interim, she will remain in Vietnam with her husband. If the applicant is likely to reside in Australia in the event her application was approved, as a matter of good faith by her, I would prefer to have some evidence that arrangements i) had commenced to withdraw from Vietnam and ii) had been made to return and reside here.
On balance, I am not satisfied that if the application for citizenship were to be approved, that it is likely, upon either meaning of that word as recorded above, that the applicant, with her husband, would return to Australia. By continuing to reside in Vietnam, not having commenced any process of reducing or ending their commitments in Vietnam, including the sale of or at least placing on the market their properties, and not commencing, at least, enquiries in Australia to rent or buy a house, I cannot be confident of finding that the applicant is likely to reside in Australia.
The remaining and in the alternative part of the subsection is whether the applicant will maintain a close and continuing association with Australia if her application is approved.
The applicant does have a continuing association with Australian persons in Vietnam, principally being her husband and with his family and friends and her nephew in Australia, on the occasions of her visits and, on occasions, by electronic communication. But this falls short of a continuing association with Australia (s21(2)(g) and s22(9)(d)) nor could it be found that she has had or has maintained a close and continuing association with Australia. That cannot be established, whilst she continues to reside in Vietnam and having spent an aggregate of 96 days here in the last four years.
Decision
The decision under review is affirmed.
I certify that the preceding 58 (fifty‑eight) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member [sgd]........................................................................
Administrative Assistant
Dated 19 December 2014
Date of hearing 14 November 2014 Advocate for the Applicant Andrew Helps Advocate for the Respondent Tigiilagi Eteuati Solicitors for the Respondent Clayton Utz Lawyers
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