Tsang and Minister for Immigration and Border Protection (Citizenship)

[2018] AATA 4073

Tsang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4073 (31 October 2018)

Division:GENERAL DIVISION

File Number:           2017/7649

Re:Ho Lam Tsang

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:31 October 2018

Place:Adelaide

The decision under review is affirmed.

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

Senior Member B J Illingworth

CATCHWORDS

CITIZENSHIP - citizenship by conferral - whether Applicant is likely to reside or to continue to reside in Australia – whether Applicant is likely to maintain a close and continuing relationship with Australia – whether Applicant has sufficient ties to the Australian community – where residing outside Australia due to mental health reasons – decision under review affirmed.

LEGISLATION

Australian Citizenship Act 2007, s 21

CASES

Re Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118

Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.
Lin v Minister for Immigration and Citizenship & Anor (2009) 176 FCR 317
G v Minister for Immigration and Border Protection [2018] FCA 1229

Re Taher and Minister for Immigration and Border Protection [2013] AATA 917

SECONDARY MATERIALS

Citizenship Policy

REASONS FOR DECISION

Senior Member B J Illingworth

31 October 2018

INTRODUCTION

1. Mr Ho Lam Tsang (“the Applicant”) has applied to the Administrative Appeals Tribunal to review a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) dated 4 December 2017, refusing the Applicant’s application for conferral of Australian Citizenship in accordance with the Australian Citizenship Act 2007 (“the Act”).

2. At the time of making the application for conferral of Australian Citizenship, the Applicant was residing in Hong Kong. The delegate decided that the Applicant satisfied the general eligibility provisions of s 21(2)(a), (b) and (c) of the Act but rejected the application for conferral of Australian Citizenship on two bases, namely:

   (a)the Applicant was unable to meet the requirements under s 21(2)(g) of the Act; and

   (b)as the Applicant was at the time of the application for conferral of Australian Citizenship a person not present in Australia, the prohibition contained in s 24(5) of the Act applied.

3. The remaining provisions of s 21(2) of the Act and the other prohibitions were not assessed. The Applicant has not yet taken the Citizenship test.

4. At the time of the hearing before the Tribunal the Applicant had returned to Australia, and the Respondent properly acknowledged that the s 24(5) prohibition no longer applied to the application.

5. The Applicant appeared in person and was assisted by an interpreter. The Respondent was represented by Mr Tristan Dimmock of Minter Ellison.

6. The Tribunal received into evidence the T Documents along with the following documents received from the Applicant namely:

   (a)Exhibit A2 – copy letter dated 22 February 2018 from Dr Li from Resident  Specialist Department of Psychology, United Christian Hospital, Hong Kong;

   (b)Exhibit A3 – Qantas airline flight records for arrival in Australia on 18 March 2018;

   (c)Exhibit A4 – Seek, job application service commencing 29 March 2018;

   (d)Exhibit A5 – CPA Program, 1 July 2017 – 1 July 2023;

   (e)Exhibit A6 – copy University of Adelaide Degree Bachelor of Commerce (Accounting) dated 31 December 2012; and

   (f)Exhibit A7 – copy letter dated 10 April 2018 from Dr Brendan Kirby, pastor, Hope Church Adelaide.

   BACKGROUND

7. The Applicant was born on 9 May 1989. He was a Hong Kong citizen and lived in Hong Kong with his parents and younger sister.

8. The Applicant entered Australia on 26 October 2009 on a Student Visa (subclass 573). On 14 November 2014 he was granted a Skilled Independent (subclass 189) Visa.

9. Following his arrival in Adelaide the Applicant studied at Adelaide University and on 31 December 2012 he was awarded the degree of Bachelor of Commerce (Accounting).[1]

   [1] Exhibit A6.

10. Following the completion of his degree the Applicant undertook a professional program year which was not an academic course but was a course designed to prepare a foreigner for work in Australia.

11. In 2014, the Applicant undertook an internship at an education centre in the Adelaide CBD. This course, the Applicant said, was designed for students to be educated in administration skills in a work environment. It was a three month course which he completed in May 2014. It was not connected to his degree in accounting.

12. The Applicant became unwell. He suffered mental health issues. With the assistance of a friend he returned to Hong Kong in 2016 where he lived with his parents. The Applicant remained in Hong Kong for two years and for a period of time, was hospitalised.

13. Whilst the Applicant was studying in Australia and before returning to Hong Kong in 2016, he would visit Hong Kong from time to time including during holiday breaks. Whilst in Hong Kong from 2016 until 2018, the Applicant did not return to Australia.

14. When living in Hong Kong and on 19 April 2016, the Applicant applied for Australian Citizenship.[2]

    [2] Exhibit A1, T4 18-33.

15. On 4 December 2017, a delegate of the Minister refused the application for conferral of Australian Citizenship.[3]

    [3] Exhibit A1, T3 p 12-17.

16. On 22 December 2017, the Applicant applied to the AAT for review of the delegate’s decision.[4]

    [4] Exhibit A1, T2 p 3-9.

    ISSUE FOR DETERMINATION

17. The issue for the Tribunal is whether the Applicant satisfies s 21(2)(g) of the Act which relevantly provides that a person is eligible for Australian Citizenship if they are:

    (a)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.

    LEGISLATIVE FRAMEWORK

18. Eligibility for citizenship by conferral is assessed according to s 21 of the Act. If a person makes an application for Australian Citizenship under s 21(1), the Minister must approve or refuse the application pursuant to s 24(1) of the Act. The Minister may refuse an application for Australian Citizenship pursuant to s 24(2) of the Act. The decision maker is provided guidance on these provisions by the Department’s Citizenship Policy (“the Policy”) issued by the Minister effective from 1 June 2016.

19. Section 21(2) of the Act sets out the general eligibility criteria for a person to become an Australian Citizen.  The section reads as follows:

    21     General eligibility

    (2)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:

    (i)     at the time the person made the application; and

    (ii)      at the time of the Minister's decision on the application; and

    (c)satisfies the general residence requirement (see section 22) or the special residence requirement (see section 22A or 22B), or satisfies the defence service requirement (see section 23), at the time the person made the application; and

    (d)understands the nature of an application under subsection (1); and

    (e)possesses a basic knowledge of the English language; and

    (f)has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship; 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.

20. Relevantly, s 21(2)(g) of the Act requires a decision maker, and therefore the Tribunal, to be satisfied that the person is likely to reside, or continue to reside, in Australia or will maintain a close and continuing association with Australia if granted citizenship.

21. It is clear that “or” in s 21(2)(g) of the Act means an applicant need only establish one of the above three limbs in order to satisfy s 21(2)(g) of the Act.[5] It follows that all three limbs must be considered before the Applicant fails.

    [5] See Lin v Minister for Immigration and Citizenship and Anor (2009) 176 FCR 371, at [28] and [108].

22. Both factual material before the Tribunal and the Policy should to be taken into account. In Ul Haque, Senior Member Britton stated at [23][6]:

    Whether or not [the applicant] has a “close and continuing association” … is a question of fact to be objectively assessed having regard to all relevant factors, including those listed in the Instructions.

    [6] Re Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 at [44].

23. The Tribunal is not bound to apply the Policy however should give regard to, and apply the Policy unless there are cogent reasons not to do so.[7] The Tribunal is not aware of any cogent reason why it should not take the Policy into consideration in this case.

    [7] Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634.

24. The Policy, with respect to “close and continuing association with Australia”, details a non-exhaustive list of factors for the decision-maker’s consideration. It relevantly provides:

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

    ·Australian citizen spouse or de facto partner;

    ·Australian citizen children;

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

    ·extended family in Australia;

    ·return visits to Australia;

    ·periods of residence in Australia;

    ·intention to reside in Australia;

    ·employment in Australia (for example, public or private sector);

    ·ownership of property in Australia; and

    ·evidence of income tax payment in Australia.

    THE APPLICANT’S EVIDENCE

25. The Applicant was born in Hong Kong and lived there with his parents and younger sister. He has a number of relatives who continue to reside in Hong Kong. He has one relative namely a cousin in Australia who lives in Perth. That cousin is an Australian citizen.

26. The Applicant said that he saw his cousin after he arrived in Australia and before he returned to Hong Kong but not very often. He said he saw his cousin on special occasions such as on holidays or Hong Kong New Year’s Day. When pressed he then acknowledged that he had seen his cousin only once before returning to Hong Kong in 2016. He had not seen his cousin since he has returned to Australia in 2018. The Applicant said that he had monthly telephone contact with his cousin.

27. The Applicant said he came to Australia in October 2009 to study at the University of Adelaide. He had not been to Australia before and upon arrival he resided in Adelaide.

28. After the Applicant completed his degree at Adelaide University, and between 2012 and 2016, he undertook two further courses of study namely:

    (a)a professional program year which was not an academic course but prepared him for working life in Australia; and

    (b)in 2014, he undertook an internship with “EQUALS” at an education centre in the Adelaide CBD, which taught him about office administration including the filing of material and general administration work. This course was for a three-month period which he completed in May 2014.

29. The Applicant said that he became unwell in 2016 and that when speaking with his parents on Skype, they observed he did not appear to be in good health and asked him to return to Hong Kong. A friend of the Applicant took him back to Hong Kong and he then lived with his parents. His sister by that time was living in Canada.

30. The Applicant said that whilst living in Australia he was never employed as an accountant nor was he employed in any substantive work. He has only had occasional cash in hand jobs as a dishwasher or waiter. He said he never earned sufficient monies to lodge a tax return. The Applicant said that he never earnt more than $12,000 which he appeared to suggest was the tax threshold at the relevant time.

31. The Applicant said that in any event he thought it was the responsibility of the employer to deal with his tax.

32. The Applicant’s evidence about his work and his understanding of the Australian tax system, tax threshold amount and responsibility and obligation for paying income tax was surprisingly vague and uninformative given his accounting degree at the Adelaide University.

33. The Applicant said that in 2017, he applied to be an Associate Member of CPA Australia while still residing in Hong Kong. The reason he made the application was that he wanted to find work as an accountant in Australia when he returned. The Applicant said that he had been suffering mental health issues and his social worker had encouraged him to make the application to become an Associate Member which he did.

34. Whilst living in Australia and before returning to Hong Kong, the Applicant said he attended church. The Applicant said his role in the church included the outreach service which was designed to get people into the church congregation. The Applicant said that his University friends also attended his church which provided an opportunity to socialise. The Applicant also said he attended prayer meetings sometimes, usually at night and mainly on the weekends. The Applicant said his attendance at church was irregular and he would attend church when he felt like he wanted to go.

35. However when the comments of Pastor Dr Brendan Kirby, as contained in his letter dated 10 April 2018,[8] were brought to the Applicant’s attention, namely, that the Applicant “has come to our church regularly from early in 2013 until he had health problems in 2015,” the Applicant changed his evidence and said that he attended church each weekend. The Applicant also confirmed he had returned to the congregation since his return to Adelaide. The Applicant’s evidence on the whole of this topic about his involvement with the church was vague and unconvincing.

    [8] Exhibit A7.

36. The Applicant said that whilst residing in Australia prior to returning to Hong Kong, and to date, he has not been in a relationship with any person. The Applicant said that he would return to Hong Kong each year whilst he was studying but after he graduated he did not return to Hong Kong as often.

37. A further reason, the Applicant said, for returning to Hong Kong in 2016, was because his doctor suggested it would be better if someone could look after him. The Applicant said that he did not have a treating medical practitioner in Adelaide and he was persuaded to return to Hong Kong by his parents after they had seen him on Skype communications. The Applicant said at the relevant time he “felt different” and that it was with the assistance of a friend that he was able to purchase a ticket to Hong Kong and return.

38. After his return to Hong Kong in 2016, the Applicant was treated by Dr Li. In a report dated 21 December 2017[9] Dr Li reported as follows:

    This patient first presented to our servers on 1 February 2016. He was diagnosed with severe depression episode for which treatment was started. He was required the support of his family in Hong Kong. He has been attending our outpatient department for treatment up till now. He is seeing today. He is currently stable but requires ongoing maintenance treatment.

    [9] Exhibit A1, T2 p 10.

39. Following his return to Australia in 2018, the Applicant has not engaged the service of a local medical practitioner or psychiatrist. Insofar as he continues to receive treatment that treatment is through Dr Li whom he will contact if required. He said his Hong Kong doctor did provide a referral letter but that it is difficult to find a suitable doctor in Adelaide. The Tribunal infers that the referral letter was not addressed to a particular medical practitioner, but was a summary of his medical condition. The Applicant said he was not familiar with the medical system in Australia.

40. The Applicant said that his condition has now stabilised. He takes medication to help with his moods as required but he could not recall the name of the medication which has been prescribed to him. He says he takes the medication when he has emotional issues. He sometimes takes sleeping pills.

41. The Applicant said that if he needs a prescription for further medication, he would contact his treating medical practitioner in Hong Kong who would send him the relevant script to be filled in Australia.

42. The Applicant’s evidence with respect to his current medical condition and ongoing treatment was unclear. Having noted the report of Dr Li and that “the applicant requires ongoing medical treatment,” it is both surprising and troubling that the Applicant does not appear to be under the care of a medical practitioner in Adelaide. Further it is unclear what the future holds in respect of the Applicant’s mental health condition and how this may impact, if at all, on his continued ability to reside in Australia.

43. In relation to potential employment, the Applicant said that he has sent out “hundreds of applications” for accounting positions since returning to Australia in March 2018. These applications have been sent through the assistance of Seek. This appears to be a gross exaggeration of the Applicant’s attempts to obtain employment when compared with the nine pages of Seek job application material provided to the Tribunal and received as Exhibit A4.

44. The Applicant said that at the moment it is hard to get a job. He would prefer a position in Adelaide. Nonetheless the Applicant said that he has now decided to travel to Melbourne because he cannot find a job in Adelaide. The Applicant said that in May or June 2018 he applied for a job in Sydney. He spoke to the prospective employer by telephone but he decided that it was too much for him to move to Sydney at that time. He described the position as not being right for him and that he was not right for the Sydney employer. When pressed, the Applicant acknowledged that the telephone conversation was not a job interview, but merely an enquiry about employment.

45. The Applicant was asked if he could not relocate to Sydney in May or June 2018, what had changed such that the Applicant could relocate to Melbourne now. His response was vague, lacked clarity and he could not give a satisfactory answer other than he proposes to go to Melbourne now because he cannot find a job in Adelaide. The whole of his evidence with respect to his future employment was unconvincing.

46. When asked about his income whilst residing in Australia before returning to Hong Kong and currently, the Applicant said that his family had been supporting him. His family paid for his tuition when studying in Adelaide, and his day-to-day living expenses. He is currently unemployed and still supported by family. The Applicant does not own any property in Australia.

47. The Applicant confirmed he is continuing to do his CPA and that once complete he hopes that this will give him a better chance of employment, albeit he is currently an Associate Member of CPA Australia.

48. The reasons the Applicant said that he satisfies the provisions of s 21(2)(g) were as follows:

    (a)He is an Associate Member of CPA Australia and this, he said, established his intention to remain in Australia;

    (b)He also attends church regularly and this therefore demonstrates his participation in the Australian community; and

    (c)The time he spent away from Australia due to his mental health issues was not within his control and should not operate against him when considering his intention to reside in Australia. He strongly submits that he wants to reside in Australia permanently, and this is evidenced by the fact of his return to Australia when fit to do so.

49. The Applicant did not call any witnesses and confirmed he did not wish to present any further or other evidence.

    SUBMISSIONS

50. In closing submissions the Applicant repeated his evidence referred to in paragraph 48 above as being factors upon which the Tribunal should rely, in satisfaction of the provisions of section 21(2)(g) of the Act.

1. The Respondent submitted that the Applicant had failed to provide sufficient evidence upon which the Tribunal could be satisfied the provisions of s 21(2)(g) had been met and enliven the discretion to set aside the decision of the delegate of the Minister.

2. The Respondent argued that the Applicant’s intention to reside in Australia has not been fully realised. It is argued that the Applicant has not established a home in Australia, and his mere presence in Australia is not enough. The Respondent contends that the Applicant’s intention to reside in Australia was in its infancy before he returned to Hong Kong and at best it could be said that it has been “kick started” since his return which has been brief. Nor was it said that the Applicant has had sufficient association with the community to “pick up where he has left off.”

3. The Respondent rightly acknowledged that the Applicant’s ancillary education to assist in obtaining employment in Australia; the CPA program, the Associate CPA membership and the nominated occupation of accountant, is contained in the Visa application[10]and does support to some extent the Applicant’s intention to reside in Australia or maintain a close and continuing in association with Australia. However, at this stage the Respondent submitted it is unclear what the future will be for the Applicant, including whether his hopes and expectations will be achieved, particularly when the Applicant provides no alternative future and has no alternate plans if he does not attain his goal of becoming an accountant.

   [10] Exhibit A1, T6, p 60-63.

4. The Respondent has rightly referred the Tribunal to the general policy provisions and the general principles of law in considering those policies for the purpose of this application. The Respondent referred in particular to G v Minister for Immigration and Border Protection [2018] FCA 1229 and the cautionary words of Justice Mortimer at [210]:

   …policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.

5. The Respondent also referred the Tribunal to Re Taher and Minister for Immigration and Broder Protection [2013] AATA 917 and the comments of Senior Member Fice at [47] namely:

   …citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time.

6. The Respondent referred to the absence of a partner, children or close family members in Australia other than the cousin in Perth whom the Applicant has met once since being in Australia, and with whom he has only spoken to by telephone, as weighing against a finding that the Applicant will reside in or maintain a close and continued association with Australia. It was rightly acknowledged by the Respondent that the Applicants return to Australia after brief visits to Hong Kong since 2009 are prima facie evidence of the continued intention to reside in Australia.  However the absence of any clear future for the Applicant, including the absence of employment and payment of income tax, the absence of ownership of property in Australia and the overall uncertainly for his future, all weigh heavily against a finding that the requirements in s 21(2)(g) have been satisfied.

7. Further, the Respondent referred to the medical evidence before the Tribunal. This included that the Applicant has been in Australia for approximately 6 months and not seen a medical practitioner, and his continued consultation with his medical advisors in Hong Kong is further evidence that the Applicant appears to have a greater association with Hong Kong than Australia. The Respondent submits this evidence should weigh against the finding that the Applicant has integrated and established himself as a member in the Australian community.

8. The Respondent argued that the Applicant’s only association with the Australian community is with his church, but should he leave Adelaide and move interstate for employment there is no evidence before the Tribunal to indicate whether his involvement with the church will continue following such a move. Further the Respondent argues that little weight can be placed upon the Applicant’s Associate Membership of the CPA. Such membership can be obtained online in any country in the world, and is a global certification. The membership within Australia does not necessarily tie the Applicant to Australia, and is a membership of convenience.

9. The Respondent also referred the Tribunal to the financial support given to the Applicant by his family as contained within the bank statements, and that the names of those depositing monies into his account are the names of his mother and father who are identified on various visa and citizenship application documents.

   CONSIDERATION

10. The Tribunal is satisfied that the Applicant’s absence from Australia between 2016 and 2018 was as a result of his mental health issues and should not be used for the purpose of an adverse finding with respect to this Application and his intention to continue to reside in Australia. The Tribunal also accepts that were it not for his mental health issues, the Applicant would have continued to reside in Australia and pursued his career as an accountant.

11. However the treatment of the Applicant’s ongoing health condition within Australia is uncertain. It is not clear whether in the short or long-term he will continue to be treated by a medical practitioner in Hong Kong or will seek appropriate medical treatment in Australia. The Tribunal does not accept the Applicant’s assertion, in the absence of any evidence to the contrary, that it is difficult to find appropriate or suitable medical support in Australia. This in turn raises the question whether the Applicant truly embraces Australia and its supports and services in the community. The Applicant’s failure to obtain medical treatment in the 6 months following his return to Australia in preference to his continued treatment by health practitioners in Hong Kong, demonstrates the Applicant maintains strong ties with his homeland to the exclusion of Australia.

12. The Tribunal finds that at all times when residing in Australia, the Applicant has been funded predominantly by his family. This includes his two year residence in Australia after completing his accounting degree. The Tribunal received various Bank SA account statements from 2015 and 2016 which demonstrate that major monetary deposits were made into that account by the Applicant’s mother or father.[11] The Tribunal finds that the Applicant has had no meaningful income whilst he has resided in Australia and has never filed an income tax return.

    [11] Exhibit A1, T6, p 64-81.

13. The strength of the Applicant’s relationship with those in the Australian community is relevant in establishing whether he is likely to reside in Australia. The Tribunal accepts that the Applicant was somewhat engaged with the church whilst residing in Australia and before returning to Hong Kong, however based on the Applicant’s evidence and the letter from the pastor of his church, the Tribunal is not satisfied as to the nature and extent of that involvement before returning to Hong Kong and following his return to Australia. The Tribunal accepts that the Applicant has returned to the church and the congregation; however the evidence before the Tribunal about the nature and extent of that return is unclear. Albeit he has demonstrated some ties and contribution to the community, the Tribunal does not give this fact much weight.

14. It is for this Tribunal, in assessing s 21(2)(g) of the Act, to look to the future. It is prospective rather than retrospective; however the Tribunal may be informed by past conduct. In Lin v Minister for Immigration and Border Protection [2009] FCA 494, Foster J said at [110]:

    In my judgment, the association limb is directed to the future upon the basis that the hypothesis contained in the subsection (viz that the citizenship application is approved) comes to pass. Indeed, the same may be said of the first and second limbs of s 21(2)(g). For this reason, I do not think that the close association contemplated by s 21(2)(g) needs to be in existence at the time that the relevant citizenship application is made. Rather, the matter is to be tested upon the basis that the hypothesis comes to pass so that the word maintain, when used in the third limb of s 21(2)(g), is meant to be read as establish and keep.

15. The Tribunal accepts that the Applicant has made some attempt to obtain employment following his return to Adelaide in March 2018; however the Tribunal finds that his description of those attempts was grossly exaggerated. Given the Applicant could not face the challenge of a move to Sydney for work in May or June 2018, it is of concern whether he could meet the challenge of a move to Melbourne at the time of the hearing of this application in September 2018. The fact the Applicant is currently completing his CPA qualification does not necessarily indicate an intention to reside in Australia. The qualification can be completed externally, and is recognised globally. The Applicant’s future plans lack certainty and clarity.

16. The demeanour of the Applicant and the reliability of his evidence was a concern. He was, on occasion, very vague in his answers to questions. An example of this was in respect of his intention to move to Melbourne for employment and his ability to cope with that move. He did not demonstrate any insight into what that move would entail, when it would occur, where he would live, how he would finance the move, how he would cope with the change in environment and integrate into the community. The Tribunal could not decide whether the Applicant was being deliberately vague in responding to certain questions, whether this was consistent with his general demeanour, or whether to some extent his continued mental health was impacting upon his ability to give clear evidence. However for whatever the reason, the Applicant did not satisfy the Tribunal about his immediate, short or long term future in Australia.

17. On the evidence the Tribunal is not satisfied of the Applicant’s intention to reside or continue to reside in Australia.

18. The Tribunal notes that to have a close and continuing association with Australia, maintaining personal presence in Australia is not necessarily required.[12] It is notable that the Applicant has had long periods of residence in Australia, however between 2016 and 2018 he has been residing in Hong Kong and made no return visits to Australia until his most recent return in March 2018. The Tribunal accepts this was because of his health issue and therefore is not to be used to draw any adverse finding against the Applicant.

    [12] Lin v Minister for Immigration and Citizenship & Anor (2009) 176 FCR 317 at [111].

19. Nonetheless, the Policy sets out a number of non-exhaustive factors that may contribute to a close and continuing association with Australia. Relevantly, the Applicant has never had an Australian spouse or de facto partner whilst living in Australia, nor does he have any children. The Applicant’s only extended family in Australia is his cousin, who the Applicant has only seen once since his arrival in 2009. The Applicant has only held occasional cash in hand jobs, and is not currently employed in the accounting industry or at all. The Applicant does not own any property. He has never filed an income tax return or made an income tax payment in Australia. This evidence does not support the Applicant’s contention that he has a close and continuing association with Australia.

20. Most of the Applicant’s family still reside in Hong Kong, and are a clear emotional and financial support to the Applicant. While the Tribunal places no adverse weight on this finding, it is reflective of the lack of such support he has in Australia. Further, his medical treatment is received from a practitioner in Hong Kong. Other than the letter from the Applicant’s pastor that between 2013 and 2015 the Applicant regularly attended church, there is an absence of other satisfactory evidence from which the Tribunal can accept the Applicant has a connection to Australia, or can maintain a close and continuing association with Australia.

    CONCLUSION

21. The whole of the evidence is not sufficient to enable the Tribunal to accept that it is likely that the Applicant will reside or to continue to reside in Australia or maintain a close and continuing association with Australia if granted Australian Citizenship.

22. This does not mean that the Applicant may not apply again in the future, but he has much to do in terms of satisfying the provisions of s 21(1)(g) of the Act.

    DECISION

23. The decision under review is affirmed.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

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

Associate

Dated: 31 October 2018

Date of hearing:	11 September 2018
Applicant:	In person
Advocate for the Respondent:	Tristan Dimmock
Solicitors for the Respondent:	Minter Ellison