Wang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)
[2021] AATA 2537
•27 July 2021
Wang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2537 (27 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8019
Re:Liang Wang
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:27 July 2021
Place:Sydney
The decision under review is affirmed.
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Mr S Evans, Member
CATCHWORDS
CITIZENSHIP – citizenship by conferral – where the Applicant satisfies subsection 21(5) of the Australian Citizenship Act 2007 (Cth) (“the Act”) – issue to be determined: whether the discretion contained in subsection 24(2) of the should be exercised to refuse the Applicant’s citizenship application – provisions of the Act considered – relevant cases considered – relevant policy considered – Applicant’s background and circumstances considered – decision under review affirmed.
LEGISLATION
Australian Citizenship Act 2007 (Cth)
CASES
Ho and Minister for Immigration and Ethnic Affairs [1994] AATA 516
RVXY and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 857
SECONDARY MATERIALS
Australian Citizenship [Policy Statement]
CPI 4 - Australian Citizenship by Conferral – Person under 18
CPI 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
CPI 13 - Best interests of the child assessments
DFAT Country Information Report People’s Republic of China
REASONS FOR DECISION
Mr S Evans, Member
27 July 2021
The Applicant, Liang Wang, seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister”) to refuse her application for Australian citizenship. Miss Wang meets the requirements for Australian citizenship by conferral but her application was refused as the delegate was not satisfied that Miss Wang and her family unit intends to reside, or continue to reside in Australia or to maintain a close and continuing relationship with Australia should the application be approved.
BACKGROUND
Miss Wang was born in China in December 2006 and first arrived in Australia on 14 December 2012 on a Child (Subclass 101) visa.
On 1 January 2017 Miss Wang returned to China to live. In the period since January 2017, Miss Wang has been in Australia on two occasions. She visited on 27 March 2018 and departed on 6 April that year. She visited once more on 23 March 2019 and departed 2 April 2019. In total the Minister calculates that she has been in Australia for 69 days since January 2017.
Miss Wang currently lives in China with Mr Wang and Ms Zhang. On 20 November 2019 Miss Wang applied for Australian citizenship by conferral. On 16 November 2020 a delegate of the Minister refused to grant Miss Wang citizenship as they were not satisfied that she and her family unit had an intention to reside in Australia or maintain a close and continuing association with Australia.
Miss Wang’s mother, Jingmei Zhang, was listed as her authorised person for the purposes of the application. Ms Zhang and Miss Wang’s father, Ran Wang, represented Miss Wang at the hearing.
LEGISLATION AND POLICY
Subsection 21(1) of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”) provides that a person may make an application to the Minister to become an Australian citizen. Relevant to this application, subsection 21(5) provides:
Person aged under 18
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged under 18 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.
It is not in dispute that Miss Wang meets the requirements in subsection 21(5).
The power to approve or refuse to approve a person becoming an Australian citizen is set out in section 24 of the Citizenship Act, which states in part:
24 Minister’s decision
(1) If a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.
Note: The Minister may cancel an approval: see section 25.
(1A) The Minister must not approve the person becoming an Australian citizen unless the person is eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6), (7) or (8).
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
(2A) If the Minister exercised the power under subsection 22A(1A) or 22B(1A) in relation to the person, the decision under subsection (1) of this section must be made by the Minister personally.
Subsection 24(2) does not state the factors that may be taken into account when refusing the grant of citizenship. However, guidance is provided by departmental policy. Decision makers, including the Tribunal, should generally apply government policy unless there are cogent reasons not to do so.
The policy relevant to Miss Wang’s application is contained in the Australian Citizenship Policy Statement and the Citizenship Procedural Instructions (“the Instructions” or “CPI”). It is notable that the Instructions impose specific requirements on applicants which may be viewed as being inconsistent with the Citizenship Act.
In RVXY and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 857 (“RVXY”), Deputy President Hack considered if the Minister was entitled to consider a matter that was not a condition of eligibility, but which was referred to in departmental policy as a matter to be taken into account.
In considering the application, Deputy President Hack observed that the absence of a residency requirement in the eligibility criteria for applicants under 18 years “…suggested a parliamentary intention that such applicants need not satisfy a residence requirement and that, accordingly, the imposition of a residence requirement by way of the Citizenship Instructions was inconsistent with the Act.” Nonetheless, the Tribunal concluded that the Citizenship Instructions were not ultra vires and that it was appropriate that Tribunal have regard to the requirements of those Instructions. Consistent with the Tribunal’s approach in RVXY, it is appropriate that I consider matters which are referred to in the Instructions when determining if the exercise of the discretion in subsection 24(2) is appropriate.
CPI 4 - Australian Citizenship by Conferral – Person under 18, states that for children aged under 15 years at the time they apply for citizenship, decision-makers should consider, amongst other things, whether the child is:
·usually resident overseas and living with a responsible parent who is an Australian citizen and who consents to the application. In this situation, it may be relevant for decision-makers to consider whether the grant of the Australian citizenship could disadvantage the child or put them in significant hardship (for example, whether by acquiring the Australian citizenship, the child would lose another citizenship which can affect their rights and access to entitlements, such as claiming an inheritance).
CPI 4 further provides that:
Applications must also be carefully considered to ensure that the child and their family unit or their relevant responsible parent, intends to reside, or to continue to reside, in Australia or to maintain a close and continuing relationship with Australia should the application be approved.
…
When considering the use of [the discretion in section 24(2)] a best interest of the child assessment must be undertaken prior to a decision being made. A best interest of the child assessment is not required if the applicant has turned 18 at the time of decision…
When considering the best interests of the child, the CPI 13 - Best interests of the child assessments, provides the following guidance:
3.2. Definition of ‘best interests of the child’
‘Child’, when used in this Instruction, means a person who has not turned 18 years of age.
The phrase ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the UNCRC. The factors that are most likely to be relevant to citizenship decisions are:
·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 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia, lists factors which are relevant to assessing whether an applicant is likely to reside or continue to reside in Australia or maintain a close and continuing association with Australia should their application be approved. These include:
·whether the person has purchased a property in their country of residence and whether they reside in the property or have made another arrangement, such as leasing to a third party;
·whether the person has any assets, commitments or ties to a country that may require them to continue to reside in that country;
·frequency and purpose of visits to Australia if the applicant resides overseas;
·frequency and reasons for absences from Australia;
·participation in the Australian community; and
·whether the applicant has a close family member who is an Australian permanent resident or Australian citizen that intends on residing in Australia.
ISSUE TO BE DETERMINED
The Minister concedes that Miss Wang meets the requirements in subsection 21(5) of the Citizenship Act. However, the Minister contends that the correct and preferable decision is to exercise the discretion under subsection 24(2) of the Citizenship Act to refuse Miss Wang’s application because the grant of Australian citizenship may not be in her best interests. Further, the Minister is not satisfied that Miss Wang’s family unit had any intention to reside in Australia or maintain a close and continuing association with Australia.
I consider the issue to be determined is whether the discretion afforded by subsection 24(2) of the Citizenship Act to refuse Miss Wang’s application for Australian citizenship should be exercised having considered:
(i)whether Miss Wang and her family are likely to reside in Australia or maintain a close and continuing association with Australia should the application be approved; and if so
(ii)whether the grant of Australian citizenship could disadvantage Miss Wang or put her in significant hardship; and
(iii)whether it is in the best interests of Miss Wang that she be granted Australian citizenship.
EVIDENCE
Ms Zhang and Mr Wang have provided written submissions and evidence to the Tribunal. They all gave oral testimony at the hearing in support of Miss Wang’s application.
Whilst Mr Wang is neither an Australian citizen or permanent resident, Ms Zhang became an Australian citizen on 23 September 2019. China does not recognise dual citizenship, and Ms Wang argues that having taken out Australian citizenship for herself there was “no turning back”. Her citizenship, she submits, is indicative of her intention to once again reside in Australia.
Miss Wang is currently studying at an international school in China. Ms Zhang submits that although she and Mr Wang had the option to send Miss Wang to a local public school, they chose a more expensive international school so that she could be educated in an “English background, culture and education system”. Ms Zhang and Mr Wang also consider that the choice of an international school will aid their daughter’s transition back into the Australian education system when she returns to Australia.
Ms Zhang gave evidence that as Miss Wang attends an international school, she does not have access to free education, health checks, local government support or a student concession for public transport in China.
Ms Zhang graduated from an Australian university with a master’s degree in accounting in 2003. From September 2013 she was working in Australia as a senior commercial officer for a major technology and health care company. In January 2017 she moved to China and began working for the same company’s Chinese branch. Initially she planned to remain in China for three years.
Ms Zhang submits that her decision to leave Australia was in anticipation of impending redundancies at her Australian employer. She contends that she needed to find another job, but concedes she left her position in Australia voluntarily. Ms Zhang also needed to return to China to be with her husband who was in China so he could obtain appropriate medical care.
The medical care related to Mr Wang’s diagnosis of ulcerative colitis following an enterostomy in December 2015. He was prescribed a variety of medicines including Chinese herbal medicines. Ms Zhang writes that following his diagnosis, Mr Wang had 8 to 9 months of treatment in Australia but it was not effective. His conditioned worsened and he was advised that western medicine combined with Chinese therapy would be helpful. Consequently, Mr Wang returned to Beijing in August 2016 to be treated with Chinese medicine. Following three years of “western medicine treatment supported by Chinese therapy”, Mr Wang’s condition has improved and is now manageable with western medicine alone.
As a consequence of the COVID-19 global pandemic, Ms Zhang submits she had little option but to renew her initial three-year contract with her Chinese employer. She is currently employed on an open-ended contract which she can terminate with four weeks notice. In a statement Ms Zhang writes that her family plans to return to Australia in 2022 if international arrivals are accepted and the impact of COVID-19 eases.
CONSIDERATION
It is not in contention that Miss Wang met the requirements in subsection 21(5) of the Act at the time of making her application for Australian citizenship. What is in dispute is whether or not the discretion in subsection 24(2) of the Act should be exercised to refuse her application.
The Minister is not satisfied that Miss Wang and her family have an intention to reside in Australia or maintain a close and continuing association with Australia. In considering whether Miss Wang’s family are likely to reside or continue to reside in Australia or maintain a close and continuing association with Australia, I am to consider the factors listed in CPI 11 as outlined in paragraph 16 of these reasons.
As mentioned, Miss Wang and her family relocated to China in January 2017. Ms Zhang contends that it was a combination of employment uncertainty and her husband’s health needs that determined their return to China.
To support her contention that she left her job in Australia in anticipation of local job cuts she has presented evidence in the form of a media article which flags the prospect of potential redundancies at her employer. She submits that she left voluntarily and did not have a position to go to in China. Whilst this may be the case I am mindful that there is no specific evidence that Ms Zhang was due to have her employment terminated or that she sought alternative employment in Australia prior to relocating to China.
I accept that Mr Wang was diagnosed with ulcerative colitis in 2015. Mr Wang’s condition has reportedly improved to the extent that it is now able to be treated in Australia. Mr Wang claims that he was not able to obtain suitable treatment for his condition in Australia previously as it required a specialist in Chinese medicine. Even if that were the case that Mr Wang required a specialist in Chinese medicine to attend to his condition, there is no evidence that would suggest he could not have sought that treatment in Australia.
There is no evidence before the Tribunal to indicate that either the Ms Zhang or Mr Wang have sought to secure employment in Australia in preparation for their imminent return. I accept the Minister’s argument that should they be intent on returning to Australia there would be expected to be some evidence that shows steps in this direction. In light of Ms Zhang being on an indefinite contract with her employer in China, I consider this weighs against the family returning to live in Australia.
I accept that Miss Wang’s parents have prioritised Miss Wang’s education and they have a well considered plan for her to attend one two local schools which their family home in Australia is in the catchment area of. They told the Tribunal that until they resume residence in Australia, they are unable to begin enrolling Miss Wang at either school. As such no documentary evidence exists which would confirm if and when Miss Wang planned to attend the schools.
I consider Miss Wang’s attendance at an international school adds weight to her being educated in Australia at some point in the future. However, given the lack of probative evidence it is unclear when and at what level she might be expected to pursue an education in Australia.
Although their home in Sydney is currently an investment generating rental income, it is also a significant asset, which along with their Australian bank accounts and superannuation, I find weighs in favour of the family’s intention to reside in Australia. However, I note that there is no evidence as to the living arrangements Miss Wang’s family have in China or any assets they may hold there.
Ms Zhang identifies the impact of the COVID-19 pandemic as the main impediment to her family returning to Australia. That may be the case currently, but it does not explain the family’s absence for the three years prior to the pandemic. Furthermore, whilst I accept that the pandemic has caused massive disruption to plans, particularly where international travel is involved, exemptions for travel and arrangements for the return of Australian citizens and permanent residents exist.
In Ho and Minister for Immigration and Ethnic Affairs [1994] AATA 516 (“Ho”) the Tribunal considered the meaning of “likely to reside” and found that it cannot 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”. Rather, the Tribunal found that ‘likely to reside’ means “likely to reside in Australia immediately, or very soon after, being granted [citizenship]…”.
When Ms Zhang was questioned about her family returning to Australia in the context of the pandemic, she confirmed that she would not return to Australia until international travel is once again “safe”. It was apparent that her assessment of what was safe, which included her family being vaccinated, would preclude an immediate return to Australia.
Taking into account the relevant factors in CPI 11, and consistent with the Tribunal’s finding in Ho, on balance I am not satisfied that Miss Wang’s family unit has an intention to reside in Australia or to maintain a close and continuous relationship with Australia at this time.
I am satisfied that Miss Wang is usually resident overseas and living with a responsible parent who is an Australian citizen and who consents to the application. In such circumstances the Instructions call upon decision makers to consider whether the grant of Australian citizenship could disadvantage the child applicant or put them in significant hardship.
I am also required to consider Miss Wang’s best interests as she is not yet 18 years of age. The phrase “best interests of the child” is not defined in the Act but CPI 13 lists factors which are most likely to be relevant. Of relevance to Miss Wang’s application are that families should be able to stay together, a child has the right to preserve their identity and the degree of the child’s integration into the Australian community.
In regard to Miss Wang’s best interests, I accept the Minister’s contention that there is no evidence to suggest that refusal of citizenship will prevent Miss Wang from staying with her family unit as she has permanent residency status in Australia. Additionally, as the entire family has residency rights in both China and Australia, there is no suggestion that refusal of Miss Wang’s citizenship would split the family unit.
Miss Wang has lived or travelled in Australia between 2012 and 2019 and I would expect her to have integrated into the community to a degree. However, there is no evidence that suggests this should be a determinative factor when considering her best interests.
Whilst there is no evidence that refusal of Australian citizenship would negatively affect Miss Wang’s identity, nationality or family relations, the Minister submits that the grant of Australian citizenship would be counter to Miss Wang’s best interests as it would cause her to lose her Chinese citizenship as China does not recognise dual citizenship. Should this happen Miss Wang will lose the rights and benefits that might otherwise accrue to a Chinese citizen.
Ms Zhang argues that Miss Wang is currently already excluded from the benefits that might arise from Chinese citizenship by attending an international school rather than a state provided school are compelling. I accept her contentions that Miss Wang has effectively already opted out of the Chinese benefits system by attending an international school as genuine. Ms Zhang also described how Miss Wang is registered and treated as a foreigner by the local educational bureau which means she could not take part in University entrance tests in China.
However, in considering the DFAT Country Information Report People’s Republic of China, it is apparent that the loss of Chinese citizenship may have implications beyond Miss Wang’s access to education and benefits. I note, for example, that citizens over the age of 16 are required to apply for identification cards and that “[v]alid ID cards are required for hukou [government household registration system], employment, opening bank accounts, obtaining passports and drivers’ licences, applications for tertiary study, travel by plane or train, marriages and legal cases. Internet cafes and some shops also require proof of identity”.
As such I find that should a situation arise where Miss Wang is living in China as a non-citizen, it would not be in her best interests and therefore the grant of Australian citizenship could disadvantage Miss Wang.
CONCLUSION
Based on the evidence, I am not satisfied that Miss Wang and her family unit are likely to reside in Australia immediately or soon after being granted citizenship, or to maintain a close and continuing relationship with Australia. I also consider that the grant of Australian citizenship could disadvantage Miss Wang as she would face losing her Chinese citizenship and the rights and access to entitlement that this entails. Further, there is no evidence that Miss Wang would be disadvantaged by not being granted Australian citizenship at this time.
As such, the decision of the delegate of the Minister dated 16 November 2020 to refuse Miss Wang’s application for Australian citizenship, will be affirmed.
This decision does not preclude her from making a further application in the future should her circumstances change and she wish to do so.
DECISION
For the reasons stated above, the decision under review is affirmed.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member
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Associate
Dated: 27 July 2021
Date(s) of hearing: 28 May 2021 Advocate for the Applicant: Ms J Zhang Solicitor for the Respondent: Mr J Pipolo, Mills Oakley
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