Xianglan Wang and Minister for Immigration and Border Protection

[2014] AATA 555

[2014] AATA 555  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/0639
Re	Xianglan Wang
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member C R Walsh
Date	8 August 2014
Place	Perth

The Tribunal affirms the decision under review.

...(Sgd) C R Walsh............

Senior Member C R Walsh

Catchwords

Citizenship – eligibility – citizenship by conferral - general residence requirement – non-citizen Applicant spouse of Australian citizen – non-citizen Applicant had periods of absence from Australia in four years immediately before citizenship application – non-citizen Applicant accompanied Australian citizen husband overseas for his employment - discretion to treat periods of absence from Australia as ones in which non-citizen Applicant was “present in Australia as a permanent resident” – whether non-citizen Applicant had “close and continuing association with Australia” during periods of absence from Australia in four years immediately before citizenship application – decision under review affirmed

Legislation

Australian Citizenship Act 2007 – s 21(2) – s 22(1) – s 22(9) – s 22(9)(a) – s 22(9)(b)- s 22(9) (c) - s 22(9)(d)- s22A(1) – s22B(1) –
s 23(1)

Australian Citizenship Act 1948 – s 13(9)(c)

Cases

Herrman v Minister for Immigration and Border Protection [2014] AATA 105
Hneidi and Others v Minister for Immigration and Citizenship [2008] AATA 923
Jiang v Minister for Immigration and Citizenship [2011] AATA 688
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634
Sapronov v Minister for Immigration and Citizenship [2011] AATA 126
Sie v Minister for Immigration and Border Protection [2014] AATA 60
Surjanto v Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689
Taher v Minister for Immigration and Border Protection [2013] AATA 917

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

Secondary Materials

Australian Citizenship Instructions (as reissued on 23 November 2013) – Chapter 5 titled “Citizenship by Conferral” – 5.18 titled “Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen (s22(9) & (10))”
Australian Citizenship Instructions (as issued on 14 October 2005) – 4.5 titled “Spouses, Widows and Widowers of Australian Citizens s 13(9)(c)”
The Parliament of the Commonwealth of Australia, House of Representatives, Australian Citizenship Bill 2005, Explanatory Memorandum and Revised Explanatory Memorandum

House of Representatives Australian Citizenship Bill 2005, Second Reading Speech, Minister for Citizenship and Multicultural Affairs, Honourable John Cobb MP

REASONS FOR DECISION

Senior Member C R Walsh

8 August 2014

INTRODUCTION

1. This application concerns whether the discretion in s 22(9) of the Australian Citizenship Act 2007 (Citizenship Act) should be exercised so as to treat any of Ms Wang’s periods of absence from Australia, in the four years immediately before she applied for Australian citizenship, as periods in which Ms Wang “was present in Australia as a permanent resident” with the consequence that she satisfies the “general residence requirement” in s 22(1) of the Citizenship Act and is eligible to become an Australian citizen by conferral under s 21(2) of the Citizenship Act.

2. In short, this turns on whether Ms Wang had a “close and continuing association with Australia” in the periods in which she was absent from Australia in the four years immediately before her citizenship application for the purposes of s 22(9)(d) of the Citizenship Act. If “yes”, the Tribunal must consider whether to exercise the discretion in s 22(9) of the Citizenship Act in Ms Wang’s favour.

BACKGROUND

1. Ms Wang is a citizen of the People’s Republic of China (PRC) who first arrived in Australian on 14 July 2006 on a Subclass 676 (Tourist) visa.

2. Ms Wang married Mr Jonathan Evans, an Australian citizen, in 2006. 

3. Ms Wang was granted a Subclass 100 (Partner) permanent visa on 11 February 2009 and first arrived in Australia on that visa on 30 June 2009.

4. Ms Wang and Mr Evans have 2 children, Henry born in 2008, and Ashlyn born in 2013.  Both of their children are Australian citizens.

5. On 5 August 2012 Ms Wang and Mr Evans departed Australia for the PRC in order for Mr Evans to commence employment as a teacher Yew Chung International School Shanghai in the PRC (Shanghai School).  Mr Evans is currently a teacher at the Shanghai School.

6. Since her first visit to Australia in 2006 and her marriage in that year to Mr Evans, Ms Wang has spent only one extended period in Australia which could be regarded as a period of residence, being from 9 July 2011 to 5 August 2012 (Extended Period of Residence).

7. Prior to the Extended  Period of Residence, Ms Wang spent the following four periods in Australia:

   ·from 22 December 2007 to 4 January 2008 (13 days);

   ·from 30 June 2009 to 15 July 2009 (15 days);

   ·from 21 July 2009 to 26 July 2009 (5 days), and

   ·from 4 December 2010 to 29 December 2010 (25 days).

8. Since leaving Australia for the PRC on 5 August 2012, Ms Wang has returned to Australia once for 11 days (i.e. from 24 December 2012 to 3 January 2013).

9. By an application dated 2 January 2014, Ms Wang applied to become an Australian citizen by conferral pursuant to s 21 of the Citizenship Act (Citizenship Application).

10. During the four years immediately prior to making her citizenship application (on 2 January 2014), Ms Wang was absent from Australia for 1,030 days, and was physically present in Australia for 431 days.

11. During the 12 months immediately before the Citizenship Application, Ms Wang was absent from Australia for 355 days, and physically “present in Australia as a permanent resident” for only 11 days.

12. On 3 February 2014 a delegate of the Minister made a decision refusing the Citizenship Application on the basis that Ms Wang did not meet all of the requirements for citizenship in s 21(2) of the Citizenship Act and, in particular, that she did not meet the general residence requirement in s 22(1) of the Citizenship Act (Citizenship Decision). 

13. In the Citizenship Decision, in considering whether the “spousal” discretion in s 22(9) of the Citizenship Act could be applied to assist Ms Wang to meet the general residence requirement, the delegate found that whilst Ms Wang satisfied s 22(9)(a), (b) and (c) of the Citizenship Act, she did not satisfy s 22(9)(d) of the Citizenship Act as she did not have a “close and continuing association with Australia” during her periods of absence from Australia in the four years immediately before her Citizenship Application. Significantly, the delegate stated:

    I accept you have a close and continuing association with your Australian citizen spouse and children.  However section 22(9)(d) requires you to have a close association with Australia not Australians.

14. On 3 February 2014 Ms Wang applied to the Tribunal for a review of the Citizenship Decision.

ISSUES

1. The issues for consideration by the Tribunal are:

   (i)Whether Ms Wang had a “close and continuing association with Australia” in the periods in which Ms Wang was absent from Australia in the four years immediately before the Citizenship Application for the purposes of s 22(9)(d) of the Citizenship Act; and

   (ii)if “yes”, whether the discretion in s 22(9) of the Citizenship Act should be exercised to treat any of Ms Wang’s periods of absence from Australia as a period in which Ms Wang was “present in Australia as a permanent resident”.

ANALYSIS

Eligibility for citizenship

1. In accordance with to s 21(2)(c) of the Citizenship Act, Ms Wang is only eligible to become an Australian citizen if she satisfies the “general residence requirement” (in s 22(1) of the Citizenship Act), the “special residence requirement” (in s 22A(1) or s 22B(1) of the Citizenship Act) or the “defence service requirement” (in s 23(1) of the Citizenship Act).

2. It is common ground that the “special residence requirement” (in s 22A(1) or s 22B(1) of the Citizenship Act) and the “defence service requirement” (in s 23(1) of the Citizenship Act) do not apply to Ms Wang and that in order to be eligible for Australian citizenship Ms Wang must satisfy the “general residence requirement” (in s 22(1) of the Citizenship Act).

3. Subsection 22(1) of the Citizenship Act provides that:

   22  General residence requirement

   (1)Subject to this section, for the purposes of section 21 a person satisfies the general residence requirement if:

   (a)   the person was present in Australia for the period of 4 years immediately before the day the person made the application; and

   (b)   the person was not present in Australia as an unlawful non‑citizen at any time during that 4 year period; and

   (c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application. [Emphasis added]

4. Since Ms Wang was only present in Australia for a total amount of 431 days in the period of four years immediately before the Citizenship Application, including only 11 days in the 12 months immediately before that day, she will not satisfy the “general residence requirement” (in s 22(1) of the Citizenship Act) unless she is able to satisfy one of the Ministerial discretions in s 22.

   Ministerial discretion – spouse of Australian citizen (s22(9))

5. The only Ministerial discretion upon which Ms Wang has sought to rely, is the discretion in s 22(9) of the Citizenship Act which provides:

   Ministerial discretion – spouse, de facto partner or surviving spouse or de facto partner of Australian citizen

   (9)If the person is the spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen at the time the person made the application, the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:

   (a)   the person was a spouse or de facto partner of that Australian citizen during that period; and

   (b)   the person was not present in Australia during that period; and

   (c)   the person was a permanent resident during that period; and

   (d)   the Minister is satisfied that the person had a close and continuing association with Australia during that period. [Emphasis added]

6. As Senior Member Fice said in Taher v Minister for Immigration and Border Protection [2013] AATA 917 at [18] and [19]:

   18.The opening paragraph of s 22(9) makes it clear that where a person is in a spousal or de facto relationship with an Australian citizen at the time the person makes an application for Australian citizenship, the Minister may exercise a discretion to treat the period that person has spent overseas as a period where the person was present in Australia as a permanent resident.

   19.The purpose underlying this discretion is to permit a person, who does not meet the general residence requirement set out in s 22 (1), even when allowances are made for overseas absences as provided for in subsections (1A0 and (1B), to meet the general residence requirement by counting the days spent outside Australia as if they had been spent in Australia.  It is not a dispensation from meeting the general residence requirement.  It simply permits that requirement to be met by alternative means.

7. It is not in dispute that Ms Wang meets the requirements of s 22(9)(a), (b) and (c) of the Citizenship Act. What is in dispute is whether Ms Wang had a “ close and continuing association with Australia” during any or all of the periods in which she was absent from Australia in the four years immediately prior to the Citizenship Application for the purposes of s 22(9)(d) of the Citizenship Act.

   “Close and continuing association with Australia”

8. The phrase “close and continuing association” is not defined in the Citizenship Act. The words in the phrase are ordinary English words and should be given their ordinary meaning in the context in which they appear. The latest version of the Macquarie Dictionary[1] defines “close” (at 287) as meaning “near, or near together, in space, time or relation”, “continuing” (at 327) as meaning “to cause to last or endure; maintain or retain, as in a position…to remain in a particular state or capacity” and “association” (at 82) as “the act of associating….the state of being associated….connection or combination.”

   [1] Macquarie Dictionary, Sixth Edition (2013), Macquarie Dictionary Publishers Pty Ltd, Sydney, Australia.

9. Section 3 of the Citizenship Act states that in the Citizenship Act:

   ““Australia”, when used in a geographical sense, includes the external Territories.”

10. The phrase “close and continuing association with Australia” as it appears in s 22(9)(d) of the Citizenship Act has been considered in a number of recent Tribunal decisions, including Sie and Minister for Immigration and Border Protection [2014] AATA 60 at [37], Herrman and Minister for Immigration and Border Protection [2014] AATA 105 at [33], Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 at [52], Taher and Minister for Immigration and Border Protection [2013] AATA 917 at [47] and [48] and Jiang and Minister for Immigration and Citizenship [2011] AATA 688 at [25]. One of the conclusions drawn in these decisions is that whilst a spouse may have a close and continuing association with Australian family that is not the same as a spouse having a close and continuing association with Australia. I agree with this conclusion which I consider is self-evident from s 22(9)(d) itself, which states that the Minister must be satisfied that a spouse of an Australian citizen had a “close and continuing association with Australia” in the relevant period. The fact that the spouse of an Australian citizen has a close and continuing association with his or her Australian citizen spouse’s family will not, by itself, constitute a “close and continuing association with Australia” for the purposes of s 22(9)(d) of the Citizenship Act. A close and continuing relationship with family in Australia is but one factor to be taken into account in determining whether a non-citizen spouse of an Australian citizen has a “close and continuing relationship with Australia” for s 22(9)(d) purposes.

11. Ms Wang and Mr Evans sought to factually distinguish the above Tribunal decisions from Ms Wang’s circumstances on the basis that in those decisions the non-citizen spouse was the primary economic provider for the family, the non-citizen spouse voluntarily left Australia for economic reasons and co-habitation was not the normal state of affairs. Whereas, in Ms Wang’s case, the Australian citizen spouse (Mr Evans) is the primary economic provider for his family, the Australian citizen spouse voluntarily left Australia for economic reasons (i.e. to obtain employment as a teacher, as he was unable to obtain employment and provide for his family in Australia) and the non-citizen spouse (Ms Wang) accompanied her Australian citizen husband (upon which she is economically dependent) overseas. Whilst this may be so, it does not change the fact that in order to satisfy s 22(9)(d) of the Citizenship Act Ms Wang must prove that she had a “close and continuing association with Australia” in the four year period immediately before the Citizenship Application. Nor does it alter the fact that what s 22(9)(d) requires is more than just a close and continuing association with Australian family in the relevant period. As the above decisions correctly identify, what is required by s 22(9)(d) is a close and continuing association “with Australia” in the period concerned.

    Objects or purpose of Ministerial (spousal) discretion

12. I agree with the following comment made by Senior Member Fice in Taher v Minister for Immigration and Border Protection [2013] AATA 971 at [26]:

    It is difficult to ascertain the objects or purpose of s 22(9) simply be reading that section alone. All that can be said from reading [s 22(9) by itself] is that there may be circumstances where a spouse or de facto partner of an Australian citizen has not met the general residence requirement [in s 22(1) of the Citizenship Act] for a reason associated with their relationship with the Australian citizen, but not simply because they have that relationship. This approach is supported by a brief examination of the history of like provisions in their earlier Citizenship Act which s 22(9) replaced.

13. The predecessor to the Citizenship Act was the Australian Citizenship Act 1948 (1948 Act) and, relevant for present purposes, the predecessor to the Ministerial discretion in s 22(9) of the Citizenship Act was s 13(9) of the 1948 Act. Section 13(9) of the 1948 Act, as in force immediately prior to the introduction of the Citizenship Act, stated:

    (9)Subject to section (11), the Minister may, in the Ministers discretion, upon application in accordance with the approved form, grant a certificate of Australian citizenship to a person:

    …..……..

    (c)who is a permanent resident and is the spouse widow or widower of an Australian citizen; or……

14. Therefore, under s 13(9)(c) of the 1948 (as it read immediately before its repeal) the Minister had a discretion to grant Australian citizenship to a person who was a permanent resident and who was the spouse, widow or widower of an Australian citizen. That is, there was no requirement for the spouse to meet either the general residence requirement or the close and continuing association with Australia requirement, which applied to other applicants. In contrast, s 22(9) of the Citizenship Act requires all applicants, including spouses of Australian citizens, to meet the general residence requirement and the close and continuing connection with Australia requirement.

15. The Explanatory Memorandum (EM) to the original Australian Citizenship Bill 2005 (Citizenship Bill)[2] explained the proposed new Ministerial discretion for spouses of Australian citizens (to be in section 22(9)) (at p29) as follows:

    This new subsection amends the Act by requiring that spouses of Australian citizens meet the same criteria as other adult applicants for citizenship.  This reflects current policy, and modern expectation that adult applicants should qualify in their own right rather than relying on a spousal relationship with another person.

    However, it is recognised that in some circumstances the spouse of an Australian citizen may have difficulty meeting the residence requirements, for example, if they are accompanying their Australian citizen spouse overseas (for example, spouses of Australians working overseas for international organisations). As a result, this subsection introduces a new discretion to waive part or all of the residence requirements for the spouse of an Australian citizen who can demonstrate a close and continuing association with Australia.  [Emphasis added]

    [2] The original Australian Citizenship Bill 2005 as introduced into the House of Representatives was amended before going to the Senate and being passed as the Australian Citizenship Act 2007. Consequently, a Revised Explanatory Memorandum for the Bill was issued. However, it is noteworthy that proposed new s 22(9) remained unaffected by the amendments to the Bill by the Senate.

16. It is clear from the above extracts from the EM that the proposed new s 22(9) is intended to require all applicants, including spouses, to meet both the general residence requirement and the close and continuing association with Australia requirement. That is, the criteria for Australian citizenship are intended to be the same for all adults, not permitting them to simply rely on a spousal relationship. This is in contrast to s 13(9)(c) of the 1948 Act under which the Minister had a discretion to grant Australian citizenship to a person who was a permanent resident and who was the spouse, widow or widower of an Australian citizen, with there being no requirement for the spouse to meet the general residence requirement or the close and continuing association with Australia requirement which applied to other applicants.

1. It does not automatically follow from the fact that the EM cites the circumstance of a non-citizen spouse accompanying their Australian citizen spouse overseas for work, as an example of when discretion may apply, that this is the only circumstance in which the discretion is intended to and may apply.  As Senior Member Fice stated in Sapronov v Minister for Immigration and Citizenship [2011] AATA 126 (at [31]):

   …..the explanatory memorandum…confirms that one should not read into the text of s 22(9) of the [Citizenship] Act, anything further than is stated in that provision.  Its purpose is to require spouses to meet the residency and close and continuing association with Australia requirements during the period they are absent from Australia subject to some relaxation of the residence requirement where they meet the criteria set out in s 22(9)(a)-(d); and where the minister forms the view that the discretion should be exercised in that person’s favour.

2. In his Second Reading Speech of the Citizenship Bill on 9 November 2005, the then Minister for Citizenship and Multicultural Affairs, the Honourable John Cobb, stated:

   The residence exemptions are being strengthened and made more equitable….

   There will only be two circumstances in which a person will be exempt from the requirement to spend at least 12 months as a permanent resident.

   The first circumstance involves the spouse of an Australian citizen. Some spouses have very close family and other connections with Australia but find it difficult to accumulate the necessary time as a permanent resident in Australia because they accompany their Australian family overseas - for example, in association with their spouses employment.  [Emphasis added]

3. As identified by Senior Member Fice in Sapronov v Minister for Immigration and Citizenship [2011] AATA 126 at [33] the Second Reading Speech to the Bill adds nothing to the EM. It simply refers to some spouses who find it difficult to accumulate the residence time required to meet the general residence requirement in s 22(1) of the Citizenship Act. The then Minister cited, as an example, a person travelling overseas in association with their Australian citizen spouse’s employment and noted that whilst such a person may not meet the general residence requirement he or she may nevertheless meet the close and continuing association with Australia requirement. In other words, such a person should not be excluded from Australian citizenship only because he or she has not met the general residency requirement.

4. Clearly, s 22(9) of the Citizenship Act is intended to and may apply in circumstances where an Australian citizen is required to work overseas and is accompanied by the non-citizen spouse who is the applicant for citizenship. I accept that Ms Wang’s circumstances fall squarely within such circumstances. However, the fact that Ms Wang’s circumstances fall within the parameters in which s 22(9) is intended to operate, is not, of itself, enough to enliven s 22(9) of the Citizenship Act. To enliven s 22(9), Ms Wang must establish that she had a “close and continuing association with the Australia” in her periods of absence from Australia in the four years immediately before the Citizenship Application for the purposes of s 22(9)(d) of the Citizenship Act. As previously stated, it is common ground that Ms Wang satisfies all of the other requirements of s 22(9), contained in s 22(9)(a), (b) and (c).

   Australian Citizenship Instructions

5. The preamble to the ACIs states:

   The role of the ACI's is to support the Australian Citizenship Act 2007. The Instructions provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations. Decision makers must be mindful that policy must not be applied inflexibly. Policy cannot constrain the exercise of delegated powers.

6. It is well-established that in the exercise of its review function, the Tribunal must take into account any relevant statement of governmental policy unless there are cogent reasons not to do so:  Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 per Brennan J. I consider that there are no cogent reasons why regard should not be had to the ACIs in this case.

7. Chapter 5 of the current ACIs (as reissued on 23 November 2013) is concerned with citizenship by conferral. Of particular relevance here, is paragraph 5.18, which sets out the following eleven factors that “may” demonstrate a “close and continuing association with Australia” for the purposes of the Ministerial discretion in s 22(9) of the Citizenship Act:

   ·evidence that the person migrated to and established a home in Australia prior to the period overseas

   ·      Australian citizen children

   ·      long term relationship with Australian citizen spouse or de facto spouse

   ·      extended family in Australia

   ·      regular return visits to Australia

   ·      regular periods of residence in Australia

   ·      intention to reside in Australia

   ·the person has been on leave from employment in Australia while accompanying their spouse or partner overseas

   ·      ownership of property in Australia

   ·      evidence of income tax paid in Australia over the past four year and

   ·evidence of active participation in Australian community based activities or organisations

8. The above eleven factors are not intended to be exclusive.[3]  In this regard, I agree with  the following comments of Senior Member Fice in Taher v Minister for Immigration and Border Protection [2013] AATA 917 at [47]:

   “In my opinion, the factors referred to [in 5.18 of the ACIs] should not be treated in isolation or simply ticked off individually as having been satisfied.  It is the combination and association of these factors which may demonstrate a close and continuing association with Australia.”

   [3] Paragraph 5.18 of Chapter 5 of  the ACIs states that the factors listed are factors that “may” demonstrate a close and continuing association with Australia and that “they include but are not limited to” the factors listed.

9. The final paragraph of, (or the “rider” to), 5.18 states:

   “In assessing whether a person has a close and continuing association with Australia for the purposes of s 22(9)(d), it is policy that more weight should be given to the above factors if the person has been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australia for at least this period.”

   Conclusion - “close and continuing association with Australia”

10. Whether Ms Wang had a “close and continuing association with Australia” throughout the relevant period is ultimately a question of fact to be objectively assessed having regard to all the relevant factors, including the factors listed in paragraph 5.18 of the ACIs and the objects or purpose of the Ministerial discretion in s 22(9) of the Citizenship Act.

11. Applying each of the factors listed in paragraph 5.18 of the ACIs to Ms Wang, the Tribunal notes the following:

    ·Evidence that the person migrated to and established a home in Australia prior to the period overseas – There is no evidence that Ms Wang migrated to and established a home in Australia prior to the periods she has lived overseas with her Australian citizen husband in the four years immediately before the Citizenship Application;

    ·Australian citizen children – Ms Wang has two Australian citizen children,  Henry born in 2008 and Ashlyn born in 2013;

    ·Long term relationship with Australian citizen spouse or de facto partner – Ms Wang has been married to Mr Evans, an Australian citizen, since 2006.

    ·Extended family in Australia – There is evidence that Ms Wang has extended family in Australia, namely her Australian citizen husband’s extended family.  I accept that the evidence demonstrates that Ms Wang has at all relevant times had and continues to have a genuinely close association with her Australian citizen husband’s extended Australian family;

    ·Regular return visits to Australia – In the four years immediately before the Citizenship Application, Ms Wang had one Extended Period of Residence in Australia (refer to paragraph 8 above) and has had one short (eleven day) visit to Australia, being the period from 24 December 2012 to 3 January 2013 (refer to paragraph 10 above). Ms Wang told the Tribunal that she was also booked on a Singapore Airlines flight to return to Australia on 23 December 2013. However, owing to difficulties in obtaining the relevant travel document for her daughter, Ashlyn, she had to remain in Shanghai but that this flight was subsequently rescheduled for July 2014. Ms Wang and Mr Evans explained that their trips to Australia coincided with school holidays provided to Mr Evans by his employer, the Shanghai School, and that, as a single income family, a yearly trip to Australia was all that they could afford;

    ·Regular periods of residence in Australia – Ms Wang has had one Extended Period of Residence in Australia (refer to paragraph 8 above);

    ·Intention to reside in Australia – Ms Wang and her Australian citizen husband, Mr Evans, gave evidence that they intend to reside in Australia with their children once Mr Evans’ employment at the Shanghai School ceases (in about two years), provided Mr Evans is able to obtain employment in Australia at that time.  However, at this point, they have no firm plans in place and have not taken any action to relocate from Shanghai to Australia;

    ·The person has been on leave from employment in Australia while accompanying their spouse or partner overseas – There is no evidence that Ms Wang has been on leave from employment in Australia while accompanying her Australian citizen husband overseas.  Ms Wang gave evidence that the only job she has ever had in Australia was a job in a Chinese restaurant, which only lasted a very short time;

    ·Ownership of property in Australia – Neither Ms Wang, nor her Australian citizen husband, has ever owned (or leased) property in Australia.  Mr Evans gave evidence that when he and his wife, Ms Wang, returned to Australia (including during their Extended Period of Residence) they lived with his Australian family in Bunbury;

    ·Evidence of income tax paid in Australia over the past four years – Ms Wang has not paid any income tax in Australia over the past four years; and

    ·Evidence of active participation in Australian community based activities or organisations – There was some evidence of Ms Wang’s active participation in Australian community based activities during the Extended Period of Residence, but not otherwise.  Ms Wang’s evidence was that whilst living in Australia in the Extended Period of Residence, she was an active participant in the following community based events -Bunbury Kidsfest, Bunbury Trotting Club's Chinese New Year Celebrations, Multicultural days at the Picton Primary School, attendance at the Bunbury Multicultural Night, attendance at the Australia Day fireworks at Bunbury foreshore, attendance at the Balingup Medieval Fair, attendance at events her husband was participating in for the Bunbury Photography Club, applied to join a local art group and attendance at various local markets.  Ms Wang said that she does not have an Australian driver’s licence and that her reliance on her husband for transport whilst in Australia in the Extended Periods of Residence constrained her ability to independently engage further with local community events and that in the periods she has been absent from Australia it has been practically difficult to maintain active participation in Australian community based activities or organisations.

12. In relation to the rider contained in the final paragraph of 5.18 of the ACIs, Ms Wang was physically present as a permanent resident in Australia for 431 days in the four years immediately prior to the date upon which she made the Citizenship Application: refer to paragraph 12 above. Self-evidently, this is marginally greater than the 365 day benchmark identified in the rider contained in paragraph 5.18 of the ACIs, but is minimal when compared to the 1,030 days in which Ms Wang was physically absent from Australia in the four years immediately before the Citizenship Application. Further, Ms Wang was only physically present in Australia as a permanent resident for 11 days in the 12 months prior to the Citizenship Application. This is far less than the 90 days specified in the rider in paragraph 5.18 of the ACIs. In any event, the critical issue for determination remains whether Ms Wang had a “close and continuing association with Australia” in the four years immediately before the Citizenship Application.

13. The Tribunal accepts the evidence of Ms Wang and Mr Evans in relation to the following:

    ·Since marrying Mr Evans in 2006, Ms Wang has tried to create a sense of identity with Australia, she is a committed wife to Mr Evans and “where he calls home, she calls home”.  Ms Wang has a genuine love and affection for her Australian husband, his extended Australian family and Australia itself.  During the Extended Period of Residence Ms Wang became involved in various community based activities (refer to paragraph 44 above), enrolled in English classes, through the Adult Migrant English program, and started driving lessons with the view to obtaining an Australian driver’s licence. 

    ·During the Extended Period of Residence, Ms Wang made friends with some local members of the Chinese community through her English classes.  However, after Ms Wang and Mr Evans returned to the PRC, following the Extended Period of Residence, further and continuing involvement in community based activities and maintaining Australian friendships became increasingly difficult;

    ·Ms Wang feels a genuine connection to Australia, not only as a land mass, but also to its people and to its values.  Through regular visits to Bunbury to visit Mr Evans’ family, she has come to appreciate the wonderful lifestyle afforded to Australians – the beaches, the wildlife and the relaxed and carefree nature of the people who live here.  Ms Wang believes that her husband and children, as Australian citizens, can be characterised as pieces of “Australia” and, as such, her daily physical and emotional interactions with her husband and her children represent daily physical and emotional interactions with part of Australia. 

    ·Since marrying Mr Evans in 2006, Ms Wang has spent considerably more time, and had more contact with, her husband’s Australian parents and family than with her own Chinese family.  Although Ms Wang’s ties to her own biological Chinese family are strong, they have weakened since her marriage to Mr Evans and the passing of her Chinese father in August 2012. 

    ·Ms Wang and Mr Evans have only ever considered there two Australia citizen children as “Australians”.  Ms Wang and Mr Evans have not given their children Chinese names, they have not tried to obtain Chinese identity papers for them, in the PRC their children attend an international school where they learn English and, at home, Ms Wang cooks her children (and husband) western style (rather than Chinese) cuisine;

    ·Ms Wang and Mr Evans have received regular visits from Mr Evans’ Australian extended family in their periods of absence from Australia.  Specifically, members of Mr Evans’ Australian family visited them in Shanghai in December 2006, October 2008, March 2009, October 2009, February 2010, April 2013 and April 2014.  Ms Wang believes that these visits from her Australian extended family have further enhanced her connection with Australia.  Ms Wang also stated that she has regular contact (approximately weekly) with her Australian citizen extended family through phone calls and “Skype”;

    ·Since marrying Mr Evans in 2006, Ms Wang has been economically dependent upon him and although they would have liked to live in Australia after marrying, Mr was unsuccessful in obtaining employment here.  During the Extended Period of Residence Mr Evans again tried to obtain employment in Australia (including employment outside his area of expertise, as a teacher) but he could not.  During the Extended Period of Residence, they were not in Bunbury to holiday “but to live and make it [their] home”.  Ms Wang and Mr Evans would have remained living in Australia after the Extended Period of Residence had Mr Evans been able to obtain employment here.  Despite Mr Evans’ inability to secure employment in Australia, it has at all relevant times and remains his and Ms Wang’s “intent” to reside in Australia when Mr Evans employment at the Shanghai School ends (in about 2 years) and if and when he is able to obtain employment in Australia.  During the Extended Period of Residence, Mr Evans was contacted, unsolicited, by a colleague at the Shanghai School who indicated that a teaching position was likely to become available for the 2012-13 school year.  Having been unsuccessful in obtaining employment in Australia during the Extended Period of Residence, Mr Evans decided to accept this teaching position at the Shanghai School due to his concerns that he would be unable to economically provide for his family if he did not accept it.

14. Having had regard to all the evidence and relevant factors, including the factors listed in paragraph 5.18 of the ACI’s and the objects and purpose of the s 22(9) Ministerial discretion, I find that there is insufficient evidence to support a finding that Ms Wang had a “close and continuing association with Australia” in the four years immediately before the Citizenship Application for the purposes of s 22(9)(d) of the Citizenship Act. In order to enliven the discretion in s 22(9)(d) of the Citizenship Act is not enough that Ms Wang has been married to an Australian citizen since 2006, has two Australia citizen children, has a genuinely close and continuing relationship with her Australian citizen husband’s extended family, has had one Extended Period of Residence in Australia, and one eleven day visit to Australia, in the four years immediately before the Citizenship Application, has a desire to live in Australia with her husband and children and that she participated in some community based activities during the Extended Period of Residence.

Exercise of discretion

1. Since a “close and continuing association with Australia”, within the meaning of s 22(9)(d) of the Citizenship Act, has not been established in Ms Wang’s case, the discretion in s 22(9) of the Citizenship Act, to treat any or all of the periods in which Ms Wang was absent from Australia in the four years before the Citizenship Application, is not enlivened.

DECISION

1. For the above reasons, the Tribunal affirms the Citizenship Decision.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for the decision herein of Senior Member C R Walsh

.....(Sgd) T Freeman.......

Associate

Dated   8 August 2014

Date of hearing	30 July 2014
Advocate for the Applicant	Mr J Evans
Advocate for the Respondent	Mr A Gerrard
Solicitors for the Respondent	Australian Government Solicitor