Wang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2022] AATA 148
•3 February 2022
Wang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 148 (3 February 2022)
Division: GENERAL DIVISION
File Number(s): 2021/2572
2021/2578Re:Wei Wang
and his minor childAPPLICANTS
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:3 February 2022
Place:Melbourne
The Tribunal affirms the decision under review.
....................[sgd]....................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
CITIZENSHIP – application for citizenship by conferral – where applicant was approved for the grant of citizenship – applicant advised he has 12 months to make the pledge of commitment –applicant did not make pledge – discretion then enlivened to cancel approval – delegate of Minister cancels approval of citizenship – two initial grounds – failure to make pledge of commitment within 12 months – not satisfied applicant likely to reside or continue to reside in Australia or maintain close and continuing association with Australia – COVID-19 Pandemic supervening event – assessment of applicant’s circumstances – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth)
Australian Citizenship Regulations 2016 (Cth)
Citizenship (LIN 20/084) (Class of Persons Who May Receive A Pledge Of Commitment) Instrument 2020CASES
Bates and Minister for Immigration and Border Protection, Re [2015] AATA 492
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634
Ho and Minister for Immigration and Multicultural Affairs, Re [1994] 34 ALD 664Minister for Home Affairs v G and Another [2019] FCAFC 79; (2019) 226 FC 569
SECONDARY MATERIALS
Department of Home Affairs – Revised Citizenship Procedural Instructions (1 January 2019): CPI 10 – Cancellation of approval and delay in making the pledge; CPI 11 – Assessing likelihood to reside or continue to reside in, or maintain a close and continuing relationship with Australia – CPI 13 – Best interests of the child assessments
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
3 February 2022
INTRODUCTION
The Applicant seeks review of the Respondent’s decision on 12 April 2021, to cancel his approval of Australian citizenship by conferral, and that of his minor child. This decision was made under s 25 of the Australian Citizenship Act 2007 (Cth) (the Act).
The hearing was held on 24 and 25 January 2022. The Applicant was previously represented by a registered migration agent[1] and the Tribunal was advised this would continue during the hearing. At the commencement of the hearing, however, the Applicant advised he was self-represented. The Respondent was represented by Anthony Gardner, a solicitor with Minter Ellison.
[1] Exhibit R1, 34; 182-183.
For the following reasons the Tribunal affirms the reviewable decision.
BACKGROUND
The Applicant is a 40-year-old citizen of the People’s Republic of China.[2] He was granted a Partner (Migrant) (Class BC) (subclass 100) visa on 13 October 2014[3] and subsequently arrived in Australia in late 2014[4] with his son. The Tribunal will refer to this minor child, who was included in the Applicant’s citizenship application, as MX.[5]
[2] Ibid 7; 29-30.
[3] Ibid 89-92.
[4] Ibid 293.
[5] Ibid 68-69; 72; 295.
He Applicant has departed and returned to Australia on approximately 15 occasions between November 2014 and February 2019.[6] He has spent approximately a fortnight in Australia since his citizenship application was granted on 14 November 2019.[7] The following chronology summarises his travel and visa history:
[6] Ibid 293-294.
[7] Ibid 19.
(a)26 November 2018: The Applicant lodged an application for Australian citizenship that included MX.[8]
[8] Ibid 28; 35.
(b)4 October 2019: The Applicant was granted a Resident Return (subclass 155) visa.[9]
[9] Ibid 19, 296.
(c)12 November 2019: The Applicant sent a letter to the Department stating:[10]
[10] Ibid 131.
My wife unfortunately suffered lymphoma (one kind of cancer) in February 2019. She visited the doctor in China, because she has premium insurance in China…
Now, my wife is in the recovery phase but sometimes her healthy is unstable after she get back to Australia. Due to her premium insurance in China, I am afraid she may need go back to China for any emergency if required. I do not know the exact time for going back to China, since it depends on her health condition.
I am wondering that if I can get a quick approval for my citizenship application because I need to get the flexible time to go back to China with my wife and take care of her. I know it is a very serious and conflicting problem that I could not leave Australia before the application get approval. I have been in Australia for 5 years and have my own dream house in Melbourne.
I will definitely live in this lovely country with my wife and son together in the future. But now I wish I could get the quick approval and then I could go to China with my wife immediately when something about her healthy issue happen. After she get cured, we will come back to my Melbourne home asap because we all love living here…
(d)14 November 2019: The Applicant and MX were granted Australian citizenship by conferral.[11]
(e)28 November 2019: The Applicant and his family returned to China and have not returned.[12]
(f)21 October 2020: A delegate of the Minister wrote to the Applicant advising that his citizenship approval was being considered for cancellation, as it did not appear he was likely to or would continue to reside in or maintain a close and continuing association with Australia.[13] The delegate asked the Applicant to provide evidence he still met the citizenship eligibility criteria.
(g)26 October 2020: The Applicant responded to the delegate’s correspondence,[14] stating he would return to Australia on 28 January 2021. He cited his wife’s ongoing health issues and COVID-19 travel restrictions as past impediments to his return.[15] He also provided evidence of employment in Australia and a Melbourne property registered in his name.[16]
(h)19 January 2021: The Applicant advised the Respondent through his migration agent that his flight to Melbourne had been cancelled.[17]
(i)28 January 2021 and 11 February 2021: The Respondent sent two further requests for information to the Applicant,[18] who responded with additional information relevant to his ties to Australia.[19]
(j)12 April 2021: The Applicant’s citizenship approval was cancelled.[20]
(k)21 April 2021: The Applicant sought the Tribunal’s review of the citizenship cancellation decision.[21]
LEGISLATIVE FRAMEWORK
[11] Exhibit R2, 1.
[12] Exhibit R1, 292; 294.
[13] Ibid 144-148.
[14] Ibid 154.
[15] Ibid 163.
[16] Ibid 160-168.
[17] Ibid 182.
[18] Ibid 185-186; 204.
[19] Ibid 191-203; 205, 214-215.
[20] Ibid 18.
[21] Ibid 4-6.
Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. To be eligible, a person must satisfy each of the eight general eligibility requirements under s 21(2) of the Act.
Under s 24(1) of the Act, the Minister must approve or refuse to approve an application for Australian citizenship by conferral.
Section 25(1)(b) of the Act confers a discretionary power on the Minister to cancel an approval for citizenship given under s 24 based on two situations. The discretion is enlivened if the person fails to make a pledge of commitment within 12 months after receiving notification of citizenship approval: s 25(3). The other situation under s 25(2)(b)(ii) is enlivened if the Minister is satisfied that at the time of cancelling the approval, the person is not likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.
Relevantly for this application, s 25(4) of the Act provides:
Cancellation of child's approval
(4) If:
(a) a child aged under 16 makes an application under section 21 at a particular time; and
(b) 1 or more responsible parents of the child make applications under section 21 at that time; and
(c) the Minister decides under section 24 to approve the child and 1 or more of the responsible parents becoming Australian citizens; and
(d) the Minister cancels the approval given to each responsible parent;
the Minister must, by writing, cancel the approval given to the child.
Section 52(1)(c) of the Act is the source of the Tribunal’s jurisdiction to review decisions made by the Minister or a delegate of the Minister under s 25 of the Act.
Citizenship Policy and Procedural Instructions
The Australian Citizenship Policy Statement (Policy) (issued 27 November 2020) and the Revised Citizenship Procedural Instructions (CPI) (reissued 26 February 2021) provide guidance for decision-makers exercising powers and carrying out functions under the Act. The Policy and CPI do not arise from specific provisions of the Act[22] and are not binding on the Tribunal. As held in Drake,[23] however, decision-makers undertaking merits review can apply such policy unless it is unlawful or ‘there are cogent reasons to the contrary.’ The Tribunal is satisfied there is no reason why the Policy or CPI should not be applied consistent with relevant authority.[24]
[22] Minister for Home Affairs v G and Another [2019] FCAFC 79; (2019) 226 FCR 569, 586.
[23] Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634.
[24] Minister for Home Affairs v G and Another (2019) 266 FCR 569 [54].
Relevant to this application is Citizenship Procedural Instruction 10-Cancellation of Approval and Delay Making the Pledge (CPI 10) and Citizenship Procedural Instruction 11-Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (CPI 11). CPI 11 guides decision-makers to adopt the ordinary meaning of the phrase ‘likely to reside or continue to reside in Australia’ as follows:
The words comprising the phrase ‘likely to reside or continue to reside’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
· ‘likely’ as probably or apparently going or destined (to do, be, etc.)-in the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia;
· ‘reside’ as to dwell permanently or for a considerable time; have one’s abode for a time-in the context of the requirements of the Act, this means the person’s home in which they ordinarily live is in Australia.
CPI 11 provides that a person’s intention to reside in Australia should be investigated if the applicant has indicated they will ‘reside outside Australia after obtaining citizenship…’. CPI 11 also draws at paragraph 3.2 upon the ordinary meaning of the words in the phrase ‘likely to maintain a close and continuing association’, noting that the Macquarie Dictionary Online defines:
· ‘maintain’ as to keep in existence or continuance; preserve; retain;
· ‘close’ as near, or near together, in space, time, or relation;
· ‘continuing’ as to last or endure;
· ‘association’ as the act of associating…connection or combination.
It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.
CPI 11 provides that the following factors may be relevant when assessing if a person is likely to reside or continue to reside in Australia, or maintain a close or continuing association with Australia:
(l)whether they are currently renting a home and any lease arrangements;
(m)whether they have purchased a property in their country of residence;
(n)any assets or commitments that may cause them to reside in a different country;
(o)the frequency and purpose of any visits to Australia if they reside overseas;
(p)the frequency and reasons for any absences from Australia if they reside in Australia;
(q)participation in the Australian community;
(r)whether they have a family member who is an Australian permanent resident or an Australian citizen and that family member intends on residing in Australia.
The meaning of the term ‘likely to reside’ was discussed by Deputy President McMahon in Re Ho and Minister for Immigration and Multicultural Affairs [1994] 34 ALD 664, in the context of the phrase as it appeared in the now repealed Australian Citizenship Act 1948:
It can not mean “likely to take up residence in 18 months or 2 years time” or “likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found.” The juxtaposition of the phrase with the opening phrase of the paragraph, indicates that the Minister must be satisfied that the Applicant is likely to reside in Australia immediately, or very soon after, being granted a certificate of Australian citizenship.
(Emphasis added)
This guidance reflects the findings of the Tribunal in Re Bates and Minister for Immigration and Border Protection [2015] AATA 492 at [22] (“Bates”):
In her evidence before the Tribunal, Ms Bates said that she intends to return to live in Australia. However, given her mother’s medical condition, she does not know when she and Mr Perkins and their son will return permanently to live in Australia. Put simply, at present Ms Bates has not determined a date on which she and her family will return to live in this country. Therefore, Ms Bates is unable to state that if granted Australian citizenship she will return to reside in Australia soon after being granted Australian citizenship…in these circumstances, Ms Bates has been unable to satisfy me that she intends to reside or continue to reside in Australia…
(Emphasis added)
In finding that the applicant was unlikely to maintain a close and continuing association with Australia, the Tribunal in Bates placed weight on the fact that the applicant had no property in Australia, had no evidence of any plans for future Australian employment, was currently residing overseas and could not be exact about her intention to return to live in Australia.
In defining the phrase ‘best interests of the child’, Australian Citizenship Procedural Instruction 13-Best interests of the child assessments (CPI 13) draws upon the principles in the United Nations Convention on the Rights of the Child (UNCRC), of which Australia is a signatory. The UNCRC identifies factors likely to be relevant to citizenship decisions:
·children should be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse;
·families should be able to stay together, as far as possible;
·the rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child;
·a child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law;
·prevention of the illicit transfer and non-return of children abroad;
·freedom of religion;
·the views of the child should be given weight in accordance with the child’s age, maturity and level of understanding; and
·the degree of the child’s integration into the Australian community.
CPI 13 also states:
Consistent with Australia’s international human rights obligations, the ‘best interests of the child’ is a primary consideration concerning children, where there is the discretion to do so. These obligations do not require that the best interests of the child be the only primary consideration, or be considered at all where there is no discretion under legislation. The best interests of the child must be weighed with or against any other primary considerations in the specific circumstances. Other primary considerations may include (but are not limited to):
·the objectives of the relevant provision/s in the Act;
·community protection; and
·community expectations.
This means that although it may be assessed that a particular decision would be in the best interests of a child, it does not automatically follow that it is the decision that should be made. For example, it may be in the best interests of a child for a delegate to decide not to revoke an associated person’s Australian citizenship under section 34 of the Act but, depending on the particular facts and after taking into account the other primary considerations, the decision-maker may conclude that revocation of the person’s citizenship is the decision that should be made. This involves a weighing of the competing interests. For example, a severe detriment to the child might outweigh a minor fraud offence by the parent, whereas if it is only marginally in the child’s best interests that citizenship not be revoked, that may be outweighed by the parent’s conviction for a serious offence.
ISSUE BEFORE THE TRIBUNAL
The parties agree s 25(3) of the Act is not enlivened.[25] The Tribunal finds that the Applicant’s failure to make the citizenship pledge did not enliven the discretion to cancel his citizenship, because he failed to do so for a permissible reason in the applicable regulations.
[25] Respondent’s Statement of Facts, Issues, and Contentions (RSFIC) 10 [47]-[51].
The only issue for determination is whether the Applicant is likely to reside or continue to reside in Australia, or to maintain a close and continuing association with Australia: s 25(2) of the Act. Given that MX was included in the Applicant’s citizenship application, a decision to affirm the reviewable decision also impacts his citizenship approval. The Tribunal must therefore have regard for best interests of the child considerations under the UNCRC.
EVIDENCE
The Applicant and his friend, Mr Bo Zhang, were the only two witnesses to give oral evidence at the hearing. The Applicant is currently located in China and gave evidence by video. Mr Bo Zhang lives in Melbourne and gave evidence by telephone. Both witnesses were assisted by an interpreter in the Mandarin language. The Applicant’s wife and a ‘brother’ he previously referred to as living in Melbourne, did not provide statements and were not called as witnesses.
Documentary evidence
The following documents were admitted into evidence:
(a)Section 37 documents lodged by the Respondent numbering 358 pages;[26]
[26] Exhibit R1.
(b)Supplementary Section 37 documents lodged by the Respondent numbering five pages;[27]
[27] Exhibit R2.
(c)Applicant’s statement dated 17 August 2021 with attachments;[28]
[28] Exhibit A1.
(d)Statement of the Applicant’s friend, Mr Bo Zhang dated 17 August 2021 with attachment titled ‘Landlord’s Statement’;[29]
(e)A copy of an email dated 16 January 2021 sent by the Applicant to his migration agent, attaching a picture with untranslated Chinese writing;[30]
(f)A photograph of the Applicant’s Victorian Driver Licence and Victorian Marine Licence;[31]
(g)A bank account statement dated 15 March 2017, showing the purchase of furniture;[32]
(h)A copy of an email sent by a Melbourne school to the Applicant in August 2021, confirming receipt of an enrolment request for MX;[33]
(i)An extract from a website showing property details for the Applicant’s Australian property;[34]
(j)An ABC News article dated 7 May 2021 titled ‘Australia’s decision to ban its citizens from returning from India-Is it legal? Is it moral? Is it just?’;[35]
(k)An SBS News article dated 7 February 2021 titled ‘I feel really betrayed’: Australian stranded abroad says he’s ‘gutted’ by the cut to international arrivals’;[36]
(l)A 7 News article dated 20 March 2020 titled ‘Morrison calls on landlords to make ‘sacrifices’ amid fears renters face eviction’.[37]
[29] Exhibit A2.
[30] Exhibit A3.
[31] Exhibit A4.
[32] Exhibit A5.
[33] Exhibit A6.
[34] Exhibit A7.
[35] Exhibit A8.
[36] Exhibit A9.
[37] Exhibit A10.
Applicant’s evidence
The Applicant adopted his statement as true and correct. He said that he intends permanently residing in Australia with his wife and MX, which would require him to ‘give up Chinese citizenship immediately.’ He stated that ‘no matter what evidence is presented [by the Respondent]’ this doesn’t ‘represent [his] real thoughts about wanting to live in Australia’. The Applicant stated on several occasions he would not be pursuing this appeal if he did not intend residing in Australia.
Wife and child’s illnesses
The Applicant said his wife was diagnosed with a serious illness in January 2019, and they returned to China for medical treatment in February 2019. He said his wife completed her treatment in October 2019 and in previous documentary evidence had claimed her condition was ‘effectively controlled’ as of 12 November 2019.[38] At the hearing, however, the Applicant claimed their brief return to Australia in November 2019 was curtailed because his wife’s ‘body couldn’t cope’. He said COVID-19 in 2020 and 2021 then impacted their plans to return. Two media articles were lodged in support of this claim. One dated 7 May 2021 relates to an Australian Government announcement about a week-long restriction on the return of citizens from India.[39] The other dated 7 February 2021 relates to an Australian family in Singapore being stranded due to flight delays.[40]
[38] Exhibit R1, 131.
[39] Exhibit A8.
[40] Exhibit A9.
The Applicant said he and his family have been prevented from returning to Australia since November 2019 because of his wife’s continuing recovery from serious illness and MX’s allergic rhinitis, both of which preclude vaccination. The Applicant did not provide any expert evidence to substantiate his wife’s or MX’s diagnosis or any impediment to vaccination. The Tribunal notes the only medical reports in evidence are dated between October and December 2020, without expert explanation, and do not show his wife was suffering the claimed medical condition at that time.[41] When asked why he did not provide other more specific medical evidence, the Applicant said: ‘My lawyer hasn’t requested it’.
[41] Ibid 161; 235; 239.
Home ownership in Australia
The Applicant agreed that in a letter to the Department dated 12 November 2019, he referred to owning a ‘dream house’ in Melbourne (“the Melbourne property”). He agreed, however, that he changed his residential address from the Melbourne property to a friend’s house only two days after making that claim and prior to returning to China.[42] When asked why he did not previously divert his residential address during an almost year-long absence from Australia in 2019, the Applicant said he was unsure how long he would be absent.
[42] Ibid 132.
The Applicant confirmed he put the Melbourne property up for sale in early 2020 and sold it in September 2020.[43] He claimed to have previously left the property untenanted during 2019, but said friends sometimes stayed there ‘for free’. He said his financial circumstances were such that he did not need to rent the property out. The Applicant was asked why he relied on title to the Melbourne property in correspondence dated 26 October 2020, as evidence of a continuing intention to reside in Australia, when he sold it a month earlier. He responded: ‘I think my lawyer might have done it’. When referred to an email from his own account making that claim,[44] he agreed he sent the email, but claimed he was ‘not very sure’ at the time about the status of the Melbourne property. He referred to uncertainty prior to settlement and said the property at that time had not yet been formally transferred to new ownership. He did not accept this showed a lack of transparency with the Department.
[43] Exhibit A7.
[44] Exhibit R1, 154; 156; 168.
When pressed about the Melbourne property sale, the Applicant said he was unable to rent it out due to COVID-19, had a ‘massive mortgage,’ and ‘high expenses’. He also claimed there were adverse tax implications if the status of the Melbourne property was changed ‘from residential to rental’. When challenged about his previous claim that his financial circumstances were such that he did not need to rent the property out and let friends stay there for free, the Applicant said another reason for selling it was because of the Australian Government’s ‘regulation that landlords can’t collect rent from tenants during COVID’. The Applicant relied on a media article dated 20 March 2020 that referred to pressure on renters at the commencement of the COVID Pandemic.[45]
[45] Exhibit A10.
The Applicant said property ownership is ‘not relevant’ to his intention to live in Australia and he can buy another home whenever he chooses. He claimed funds were immediately available for this purpose but did not provide corroborating evidence. The Applicant confirmed he has not yet advanced his home purchase intention beyond aspiration.
Work and business ownership
The Applicant said he only worked briefly in Australia as a real estate agent from October 2018 until February 2019. When asked how he supported his family, he claimed to be: ‘able to do that with our financial situation’. The Applicant was asked about a submission he previously made about an ‘open offer of employment’ as a real estate agent but said this offer is ‘probably no longer available.’ He claimed to have received another employment offer but said during questioning this was made in May 2020 and is ‘maybe no longer available’. When asked to confirm he currently has no employment offer in Australia, the Applicant agreed but again claimed he did not need to work.
The Applicant referred to his investment activities in Australia and stated he and his witness in this proceeding, Mr Bo Zhang, were formerly investment partners: ‘I’ve known him for many years – we were in an investment company before – we partnered to invest in house and land packages’. When asked under what arrangement this investment occurred, the Applicant responded: ‘We used to have a partnership name’. When asked what it was, he responded: ‘I don’t remember’.
The Applicant stated that he operated a company called Doncaster Talford while living in Australia and held an Australian Business Number (ABN) as a sole trader. During a break in proceedings the Tribunal undertook a company search on the Australian Securities and Investment Commission (ASIC) website, which showed an application to deregister a company of the same name in mid-2020. When this was put to the Applicant upon resumption, he agreed this was the company he previously referred to and that he had deregistered it. He also cancelled his ABN around the same time but claimed to have ‘forgotten the reason’ for doing so. He claimed it may have been related to a ‘tax matter,’ and the burden of compliance. The Applicant said he previously had a ‘few other companies’ in Australia whose registration he also cancelled. No evidence was provided about this. The Applicant said there is no relationship between factors like home ownership, his decisions to cease operating these companies, cancelling his ABN, and an intention to permanently reside in Australia
Efforts to return to Australia
The Applicant said he ‘booked many flights’ to return to Australia but ‘cancellation rates were very high’ and precluded his return. When put to him there was only one email dated 16 January 2021 with untranslated writing in Chinese that he relied upon for this claim,[46] the Applicant said there is ‘a record of other flights,’ but did not provide this material.
[46] Exhibit A3.
The Applicant said that on 18 January 2022 he booked a ticket for himself and MX to return to Australia in June 2022, but his wife will remain in China. He said this is because she is unvaccinated and ‘it wouldn’t be safe for her health’. When asked about his earlier evidence that MX’s allergic rhinitis also prevented vaccination and return to Australia, the Applicant stated: ‘Maybe later in the year people with allergic rhinitis will be eligible for vaccination’. He claimed that ‘another important reason’ MX would travel to Australia is because pollution in Beijing affected his allergic rhinitis. The Applicant agreed MX’s travel to Australia is conditional on vaccination. When asked why he booked a flight for MX given this uncertainty, the Applicant said someone told him vaccination may be available for MX in February or March 2022, but he was ‘not 100% sure.’ The Applicant disagreed with
Mr Gardner’s contention that he booked the flights on 18 January 2022 for reasons other than an intention to return to Australia.
In response to the evidence of his witness, Mr Bo Zhang, who erroneously believed that the Applicant would returning to Australia in June 2022 with his wife and son, the Applicant said he was not sure why Mr Zhang said this:
I have clearly told Bo Zhang my friend about going back to Australia before and I’ve got the conversation recorded in my WeChat as an evidence. He knew about this plan, I wasn’t sure why, maybe because of communication or his English proficiency, that you have misunderstood his claim. I’ve sent him via WeChat on the 20th of January about my flight itinerary. So I do not accept the claim that Bo Zhang is not aware of me coming back to Australia.
Residence location and school arrangements
The Applicant was asked about what appeared to be conflicting previous claims about where he would live in Australia upon return. He had conveyed an intention to live in Brisbane because of his wife’s health. He claimed to have now decided against this because his wife’s health ‘has improved a lot in the last two years and she’s fine in either Melbourne or Brisbane…She’s not very concerned about treatment in Australia now’. He also claimed educational opportunities in Melbourne were better for MX than in Brisbane. The Applicant was referred to an email between himself and a private school in late 2021 where he enquired about enrolling MX in Year 3 but was waitlisted pending a vacancy.[47] The Applicant said if this application fell through, he would enrol MX in a local state school, who had informed him MX could ‘come back anytime’. When asked if he had any documentary evidence of that offer, the Applicant responded: ‘My lawyer didn’t request it’. He said MX was currently enrolled in and attending school in China.
[47] Exhibit A6.
The Applicant claimed he would only live with Mr Zhang in Melbourne for a relatively short time before purchasing a home. He agreed that he had not yet taken any steps to identify a home for purchase, because he can only inspect properties while in Australia.
The Applicant was asked about his previous claim that he stored furniture and other belongings in his brother’s garage in Melbourne.[48] He claimed his brother still owns property in Australia but is a citizen of China with permanent Australian residency and is currently in China. In response to further questions the Applicant conceded this person was not his brother but a ‘very distant relative…from a distant family’.
[48] Exhibit R1, 214.
Evidence of the Applicant’s friend
Mr Bo Zhang, adopted his brief statement dated 17 August 2021 as true and correct. He referred to the Applicant as ‘one of [his] best friends.’ When asked how they knew each other, he referred to previous business investment together. When asked if that was through a partnership arrangement or a company called Doncaster Talford Pty Ltd, Mr Wang said he was not in partnership with the Applicant and ‘not a shareholder’ of that company.
Mr Zhang said he offered the Applicant and his family a spare bedroom at the house he shares with his wife, while they re-establish themselves. Mr Zhang erroneously believed the Applicant was returning to Australia in June 2022 with his wife and son. He said they were welcome to stay as long as they wanted but thought the Applicant would purchase a new home relatively quickly.
Mr Zhang recalled that the Applicant updated his residential address with the Department in November 2019 to Mr Zhang’s home. He said this was because the Applicant needed a residential address where his replacement driver’s licence could be sent. When asked why the Applicant could not use his own residential property, Mr Zhang responded: ‘He sold that property’. When asked why the Applicant had not similarly changed his residential address during his earlier absence from Australia throughout 2019, Mr Zhang responded: ‘I can’t remember – I don’t remember what he told me’. When asked if the Applicant had previously discussed his intention to live in Brisbane, Mr Wang said ‘he didn’t tell me this’.
Respondent’s submissions and contentions
Mr Gardner said the Applicant has not provided sufficient evidence to establish he is likely to reside in Australia or to maintain a close and continuing association with Australia, and therefore does not meet the requirements of subparagraph 25(2)(b)(ii) of the Act. This was notwithstanding the impact of the COVID-19 Pandemic and the best interests of MX.
Mr Gardner said it is not apparent from the Applicant’s evidence that he is likely to reside in Australia immediately or very soon after being granted citizenship. He said the ticket for the Applicant’s return to Australia in June 2022 was only purchased seven days prior to the hearing and seemed to have been motivated by reasons other than his own intention to return. Moreover, the ticket purchased for MX was inconsistent with the Applicant’s earlier evidence about allergic rhinitis and preclusion from vaccination. In that sense the Applicant was speculating about the prospect of MX being able to return with him. The Applicant also claimed his wife was unable to return to Australia because of continuing consequences of her illness and inability to be vaccinated, for which there was no corroboration.
Mr Gardner said the Applicant’s sale of the Melbourne property and claim he would live with a friend while contemplating the purchase of another home rested on assertion alone. He said it is also noteworthy the Applicant’s close friend, Mr Zhang, was unaware the Applicant’s wife would not be returning with him in June 2022, raising further doubts about how developed the Applicant’s return plans are.
Mr Gardner highlighted the Applicant’s uncorroborated claims about not needing to work, changing evidence about the intended city of return, and deregistration of his company and cancellation of his ABN, as evincing further uncertainty that he will reside in Australia immediately or very soon after being granted citizenship. He said the Applicant’s past conduct was suggestive of an intention to reduce his association with Australia rather than maintain it. Moreover, the paucity of supportive evidence, demonstrated the Applicant’s limited continuing ties to Australia. Of note was the Applicant’s concession during the hearing that the ‘brother’ in Australia he previously referred to is not a biological relative but a ‘very distant relative…from a distant family’.
Mr Gardner also said that as permanent residents of Australia with the current ability to depart and return as they have done frequently in the past, it was not against the best interests of MX for the reviewable decision to be affirmed.
CONSIDERATION
The Applicant’s conduct prior to leaving Australia in 2019 is not indicative of a continuing intention to reside or continue to reside in Australia. Soon after claiming the Melbourne property was his ‘dream house’ and that ownership of it reflected his intention to live and work permanently in Australia, the Applicant changed his forwarding address and placed the Melbourne property up for sale. He also deregistered a company he operated and cancelled his ABN. The Tribunal is unpersuaded by the Applicant’s evidence that he only decided to sell the Melbourne property after the onset of the COVID-19 Pandemic in March 2020. Mr Wang’s evidence linked the Applicant’s decision to forward his mail to Mr Wang’s address in late 2019, to the sale of the Melbourne property.
The Applicant last departed Australia on 28 November 2019, a fortnight after lodging his citizenship application, and has not returned. He has provided no evidence about his current accommodation arrangements and life in China. Some of the evidence about his plans for returning to Australia was opaque, aspirational, speculative, and inconsistent. For example:
(a)The Applicant relied on his self-reported claims alone when stating that medical impediments prevented his wife and MX returning to Australia, purported inability to get return flights despite multiple efforts, ability to finance a home in Australia and living costs without working, and arrangements for MX’s schooling. The materials he provided, including a renewed Victorian licence, mobile phone bill, and credit card statement, which do not carry much weight. For example, the mobile phone bill dated January 2021[49] has an address for a house the Applicant agrees he sold the previous year. The Applicant referred on several occasions to his ‘lawyer’ not asking for material that he claimed is available. Given he was represented until the commencement of the hearing, the Tribunal does not accept it was not apparent to the Applicant or his representatives that such material might have more persuasively advanced his claims. This could have included information like expert medical reports, translated flight booking and cancellation information, extracts from bank accounts or other financial records, and other evidence relevant to his association with Australia.
(b)The Applicant declared a year ago his intended destination on return to Australia was Brisbane because of his wife’s health. In oral evidence, however, he said his wife’s health is no longer a barrier to returning to Melbourne. This sits uneasily with other oral evidence that she won’t be returning to Australia with him and MX in June 2022 because of continuing health issues that preclude vaccination.
(c)The Applicant only recently purchased a ticket for MX to accompany him to Australia in June 2022 but said this is subject to MX being vaccinated. There is no independent corroboration for MX’s claimed medical condition, impediments to vaccination, or the claim that vaccination for him may be available in a few months.
(d)Mr Zhang erroneously believed the Applicant, his wife and MX were returning to Australia in June 2022. The Tribunal does not accept the Applicant’s claim that Mr Zhang’s evidence in this regard was misunderstood.
(e)There is no evidence to corroborate the Applicant’s claim about an offer of work in May 2020. His claim that he does not need to work similarly rests on assertion alone.
(f)The ‘brother’ in Melbourne at whose home the Applicant previously claimed to have stored furniture and other household items is currently in China, did not provide any evidence, and the Applicant concedes this is not his brother but a distant relative. The credit card statement provided by the Applicant dated 15 March 2017 has little probative value to support his claim about possessions in Australia.
(g)MX is currently attending Year 3 primary school in China. In late 2021 the Applicant placed him on the wait list at a private school in Melbourne but confirmed during the hearing no offer had yet been made. There is no corroboration of the Applicant’s claim that another school in Melbourne has agreed to MX’s enrolment.
[49] Ibid 243.
The Tribunal acknowledges the impact of COVID-19 during the last two years and difficulties with travel and gathering documents. But there is limited evidence at best to support the Applicant’s claim that he ‘booked many flights’. The media articles he provided in support of his COVID-19 claims are not specifically relevant to his circumstances.
The plans the Applicant conveyed for living in Australia are uncertain and speculative. His absence for most of the last three years and his conduct leading up to his last departure and since, is indicative of someone reducing ties previously held in Australia rather than maintaining them. It is not apparent from the currently available evidence that he has close or continuing ties or associations, which appear limited to Mr Zhang and perhaps a few others. There is no evidence to corroborate several claims, such as being able to purchase a home or fund his family’s life in Australia without working, or relating to other commitments, associations, past tax contributions, or continuing participation in the Australian community.
In terms of the best interests of MX, the Tribunal has considered the policy guidance in CPI13 and the specific circumstances of this case. Affirming the reviewable decision does not affect MX’s immigration status in Australia. As a permanent resident he is free to return and depart with his family. His rights while in Australia regarding education and other protections are similarly unaffected. He and his parents would also remain citizens of China with no discernible impact on the life they have led there for the past three years.
CONCLUSION
The Tribunal is not satisfied that at the time of this decision the Applicant is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia pursuant to s 25(2)(b)(ii) of the Act. The Applicant, and by extension MX, no longer satisfy the eligibility criteria for the grant of Australian citizenship.
DECISION
It follows the Tribunal affirms the decision under review.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
.......................[sgd].................................................
Associate
Dated: 3 February 2022
Date of hearing: 24 and 25 January 2022 Applicant, self-represented: By video Advocate for the Respondent: Mr Anthony Gardner Solicitors for the Respondent: Minter Ellison
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