Xiaoxing Zhang and Minister for Immigration and Border Protection
[2014] AATA 514
•28 July 2014
[2014] AATA 514
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0266
Re
Xiaoxing Zhang
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 28 July 2014 Place Brisbane The Tribunal affirms the decision under review.
...........................Sgd.............................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
CITIZENSHIP – Application for citizenship by conferral – Whether applicant meets residence requirements – Whether applicant likely to reside in Australia – Whether ministerial discretion be exercised – Whether applicant has a close and continuing association with Australia – Decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22, 22A, 22B
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
SECONDARY MATERIALS
Australian Citizenship Instructions, Department of Immigration and Citizenship National Office (1 July 2013)
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
28 July 2014
INTRODUCTION
Mr Xiaoxing Zhang (“the applicant”), a citizen of China, has made an application for Australian citizenship. A delegate of the Minister declined that application because the applicant did not satisfy a residence requirement in the Act as required by s 21(2)(c) of the Australian Citizenship Act 2007 (Cth) (“the Act”). The applicant seeks the exercise of Ministerial discretion under s 22(9)(d) of the Act to treat the residence requirement as having been met. In considering his application I am required to consider whether the applicant had “a close and continuing association with Australia” in those periods of time that he was absent from Australia, being the period of four years prior to him making his application for Australian citizenship. I also have to consider whether the applicant
“is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved” as required by s 21(2)(g) of the Act.
RESIDENCE REQUIREMENT
To be eligible for the conferral of Australian citizenship the applicant must satisfy the general residence requirement (s 22 of the Act), the special residence requirement
(s 22A or s 22B of the Act), or the defence service requirement (s 23 of the Act).
The special residence requirement and the defence service requirement of the Act have no relevance to this application so that the applicant has to satisfy the general residence requirement.
Section 22(1) of the Act provides that the general residence requirement will be satisfied by a person if:
(a) the person was present in Australia for the period of 4 years immediately before the day he or she 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 he or she made the application.
By s 22(1A) of the Act, the applicant will be taken to satisfy s 22(1)(a) of the Act if the total period of any absence in the four years immediately before 19 August 2013, which is the day on which he made his application for Australian citizenship, was not more than 12 months. By s 22(1B) of the Act, a person is taken to satisfy s 22(1)(c) of the Act if the total period of any absence during the 12-month period immediately before the day he or she made the application was not more than 90 days and he or she was a permanent resident during each period of absence.
The applicant cannot satisfy any of these provisions. In the four years immediately before he made his application for Australian citizenship on 19 August 2013 (“the statutory period”), he was present in Australia for a total of 271 days.[1] I therefore find that that the applicant has not satisfied the general residence requirement in s 22(1) of the Act.
[1] Exhibit A, p 15.
In the twelve month period before making his application for Australian citizenship, the applicant was outside Australia for 280 days.[2] I find that the applicant was outside Australia for more than 90 days in that twelve month period and so cannot satisfy
s 22(1B) of the Act.
[2] Exhibit A, p 15.
MINISTERIAL DISCRETION
As I am satisfied that the applicant does not satisfy the general residence requirement (which is quite properly conceded by the applicant), the applicant seeks the exercise of the discretion which is conferred upon the Minister by s 22(9) of the 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 ... 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.
The Minister accepts that the applicant satisfies ss 22(9)(a), (b) and (c) of the Act.
At issue is whether the applicant meets the requirements of s 22(9)(d) of the Act.
The Australian Citizenship Instructions (“the Instructions”)[3] have been issued to “provide guidance on policy in relation to the interpretation of, and the exercise of powers under, the Act and the Regulations”. Policy documents such as the Instructions will generally be followed by this Tribunal unless this would cause injustice in a particular case or where there are compelling reasons to disregard the policy.[4] There was no submission to this Tribunal that following the Instructions would cause injustice to the applicant.
[3] Exhibit A, pp 44-81.
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The following extract from the Instructions, which is in evidence,[5] provides:
[5] Exhibit A, pp 5, 60.
5.18 Ministerial discretion - spouse, de facto partner or surviving spouse or de facto partner of an Australian citizen (s 22(9) & (10))
...
In all cases, applicants must provide evidence that they maintained close and continuing association with Australia while overseas. Factors that may demonstrate this close and continuing association with Australia include but are not limited to:
·Australian citizen children
·long term relationship with Australian citizen spouse or de facto partner
·extended family in Australia
·regular return visits to Australia
·regular periods of residence in Australia
·intention to reside in Australia
·employment in Australia where the person has been on leave to accompany their spouse or partner overseas
·ownership of property in Australia
·evidence of income tax paid in Australia over the past four years and
·evidence of active participation in Australian community based activities or organisations.
In assessing whether a person has a close and continuing association with Australia for the purposes of s 22(9)(d), it is policy that more weight should be given if the person has been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for 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 Australian for at least this period.
The applicant was not present in Australia for at least 365 days in the 4 years immediately before making the application. I will examine the factors that are set out in the Instructions to examine the nature of the association of the applicant with Australia.
Australian citizen children: The applicant has two children who are Australian citizens.
Long term relationship with Australian citizen spouse: The applicant has a long term relationship with his Australian citizen spouse since their marriage in China in 1998.
Extended family in Australia: The applicant has no extended family in Australia.
Regular return visits to Australia
: During the statutory period the applicant made
twelve visits to Australia.
Regular periods of residence in Australia: There is evidence that on most occasions when the applicant visited Australia he stayed for less than one month.
Intention to reside in Australia
: The applicant has provided a statement dated
15 August 2013 in which he remarked: “Having established a solid network in mainland China over the last 10 years, I believe it has come to the right stage to become a settled Australian to further develop my businesses in Australia and carry out exporting Australian products to China. This will assist Australia’s economy as China has proved to be Australia’s largest export market”.
Employment in Australia: During the statutory period the applicant was not employed in Australia.
Ownership of property in Australia: The applicant has not provided any evidence of owning any real property in Australia. However, he has provided a rates notice for one residential property which indicates that he is the owner of the property.
There is another residential property which has been contended to be the property of the applicant. However, I do not accept that this is the case as the rates notice for that property is in the name of the spouse of the applicant.
Evidence of income tax paid in Australia over the past four years: The applicant has not paid any income tax in Australia during the statutory period.
Evidence of active participation in Australian community based activities or organisations: There is evidence that since 2011 the applicant has been a member of an association but there is no evidence of the activities of that association. There is no evidence of the applicant actively participating in any Australian community based activities or organisations.
The Instructions provide that the consideration of a decision-maker is not limited to the factors that are outlined in the Instructions and I can consider other factors which are relevant to my consideration of the application. The applicant is a director of a company which is a logistics business but the applicant was not available to give evidence of the nature of his involvement in that business. The applicant has substantial funds in a bank account.
It was asserted that the applicant had an involvement in a Sydney based business, but there was no documentary evidence of his involvement other than a reference in which it was stated that the applicant had provided that business with “lots of constructive advice on how to build up and develop that business”.
The applicant submitted documentation that relates to matters that have occurred after the statutory period. For example, after the statutory period the applicant and his spouse have entered into two contracts to purchase off-the-plan properties. There is also evidence of substantial funds being held in a term deposit at a bank. This material is not relevant to my inquiry which has to be directed to the statutory period having regard to s 22(9)(d) of the Act which refers to the “close and continuing association with Australia during that period”. In any event, the applicant was not available to give evidence in relation to those matters.
After reviewing the evidence before me I am not satisfied that the applicant had “a close and continuing association with Australia” when he was absent from Australia in the four years prior to him making an application for Australian citizenship. I appreciate that the applicant has a long term relationship with an Australian citizen spouse as well as a role supporting his family, including in the education of his children. However, there is a directive in the Instructions not to give great weight to such factors where the applicant had not been lawfully and physically present in Australia for at least 365 days in the
4 years immediately before making an application for Australian citizenship, and no reason was advanced that the application of this directive would cause injustice.
There is no evidence that the applicant has made a contribution to Australia during the statutory period by actively participating in any Australian community based activities or organisations during the statutory period. The applicant has not paid any income tax during the statutory period despite his asserted involvement in two Australian businesses. There is also no evidence that the company of which he is a director has paid any company tax. The applicant or his spouse did not give evidence in support of his application and were not available to be questioned.
I am not satisfied that the applicant had “a close and continuing association with Australia” when he was absent from Australia in the four years prior to him making an application for Australian citizenship. I do not consider that I can exercise discretion under s 22(9) of the Act.
INTENTION TO RESIDE IN AUSTRALIA
The delegate declined the application for citizenship by conferral because the delegate was not satisfied that the applicant “is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved” in the terms of s 21(2)(g) of the Act.
In Re Ho and Minister for Immigration and Ethnic Affairs[6] Deputy President McMahon considered the meaning of the term "likely to reside in Australia":
It can not mean "likely to take up residence in 18 months or two 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 citizenship... or within any reasonable time thereafter.[7]
[6] (1994) 34 ALD 664.
[7] (1994) 34 ALD 664 at [31].
The applicant declined to attend the hearing of this application although he was in Brisbane having recently returned from China. The applicant has certainly made a statement that he has “come to the right stage to become a settled Australian to further develop my businesses in Australia”. In a submission dated 22 February 2014 it is submitted: “The Applicant possesses a strong intention to reside in Australia… As his two children grow up, he wishes to spend more time with them. Moreover, he wishes to settle down in Australia and develop methods and techniques for overseas people to purchase goods from Australia local products as he wishes to make a contribution to the Australian society”.
If this application for citizenship was now successful I am not be satisfied that the applicant would reside in Australia immediately or very soon after being granted a certificate of Australian citizenship.
CONCLUSION
The delegate of the Minister was correct in deciding that the applicant cannot be granted Australian citizenship.
DECISION
I affirm the decision under review.
I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member ...............................Sgd.........................................
Associate
Dated 28 July 2014
Date of hearing 2 July 2014 Advocate for the Applicant Ms Edwina Zhang, Lynfield Company Pty Ltd Solicitors for the Respondent Mr Tom Saunders, Clayton Utz
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