Yang v Minister for Immigration and Border Protection
[2017] AATA 364
•23 March 2017
Yang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 364 (23 March 2017)
Division:GENERAL DIVISION
File Number: 2016/5829
Re:Xiaoting Yang
APPLICANT
Minister for Immigration and Border ProtectionAnd
RESPONDENT
DECISION
Tribunal:Senior Member A C Cotter
Date:23 March 2017
Place:Brisbane
The decision under review is affirmed.
.......................[Sgd].................................................
Senior Member A C Cotter
CATCHWORDS
AUSTRALIAN CITIZENSHIP - application for Australian citizenship by conferral - spouse of Australian citizen - non-compliance with the general residence requirements - whether a close and continuing association with Australia - whether discretion in s 22(9) enlivened – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) ss 21, 22, 24
CASES
Al- Hadethi and Minister for Immigration and Border Protection [2016] AATA 447
Gorshechnikova v Minister for Immigration and Border Protection [2014] AATA 891
Kim and Minister for Immigration and Border Protection [2015] AATA 67
Kumar v Minister for Immigration and Border Protection [2015] FCA 446Li and Minister for Immigration and Border Protection [2015] AATA 270
Minister for Immigration and Border Protectionv Han [2015] FCAFC 79
PMYL & Anor and Minister for Immigration and Border Protection [2014] AATA 148
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sabumei and Minister for Immigration and Border Protection [2014] AATA 648
Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689
Taher and Minister for Immigration and Border Protection [2013] AATA 917
Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118SECONDARY MATERIALS
Concise Oxford English Dictionary (12th edition, 2011).
The Macquarie Dictionary (7th edition, 2017).Citizenship Policy (1 June 2016)
REASONS FOR DECISION
Senior Member A C Cotter
23 March 2017
INTRODUCTION
In November 2015, Ms Xiaoting Yang applied for Australian citizenship by conferral under s 21 of the Australian Citizenship Act 2007 (Cth) (“Act”).
The following September, a delegate of the Minister for Immigration and Border Protection (“Minister”) refused the application on the basis that Ms Yang did not satisfy the residence requirements under s 21(2)(c) of the Act.
Dissatisfied with that outcome, Ms Yang has applied to this Tribunal for a review of that decision.
For the reasons outlined below, I consider that the decision under review should be affirmed.
BACKGROUND
Ms Yang is 44 years of age and a citizen of the People’s Republic of China.
She first arrived in Australia in September 2005 as the holder of a Tourist visa (subclass 676). Between then and 2009, she arrived in and departed Australia numerous times as the holder of that visa.[1]
[1] Exhibit 1, T Documents, T 8, page 68, Department’s letter to Ms Yang dated 28 September 2016.
In September 2006, Ms Yang married Mr Raymond Pfanner, an Australian citizen. In 2009, she made an offshore application for a Partner (Provisional and Migrant) visa (subclass 309 and 100 respectively). She was granted a Partner (Provisional) visa in July 2009 and a Partner (Migrant) visa on 2 June 2011.[2]
[2] Exhibit 2, Applicant’s submissions dated 12 December 2016, page 2.
8.On 23 November 2015, Ms Yang applied for Australian citizenship by conferral under s 21 of the Act.[3]
[3] Exhibit 1, T Documents, T 4, pages 11-39, Application for Australian Citizenship by Conferral – General Eligibility, dated 23 November 2015.
Movement records held by the Minister’s Department revealed that Ms Yang was present in Australia for 408 days (and absent for 1,053 days) in the four years before her citizenship application was made (that is, between 23 November 2011 and 23 November 2015), and for 42 days (absent for 323 days) in the 12 months immediately preceding the application.[4]
[4] Exhibit 1, T Documents, T 9, page 78, Department screenshot- interval calculator. It is noted that Ms Yang disputes the first of these calculations, saying that she had spent a total of 410 days in Australia (absent 1,052 days) in the four years preceding the lodging of the application: see Exhibit 2, Applicant’s submissions dated 12 December 2016, page 5. However, I do not consider that discrepancy to be substantial or material.
On 28 September 2016, a delegate of the Minister refused Ms Yang’s application on the basis that she did not satisfy the residence requirements under s 21(2)(c) of the Act.[5]
[5] Exhibit 1, T Documents, T 8, pages 68-77, Department’s letter to Ms Yang dated 28 September 2016.
Ms Yang subsequently lodged an application for review of that decision by this Tribunal, asserting that she has close and continuing ties to Australia that were not properly considered.[6]
[6] Exhibit 1, T Documents, T 2, page 8, Application for Review of Decision dated 26 October 2016.
THE LEGISLATIVE FRAMEWORK
Section 21(1) of the Act provides that a person may make an application to the Minister to become an Australian citizen. The Minister must, by writing, approve or refuse to approve the person becoming an Australian citizen.[7] Section 24(1A) of the Act states that the Minister must not approve a person becoming an Australian citizen unless he or she is eligible to become an Australian citizen under one of various specified subsections. For present purposes, the relevant subsection is s 21(2), which sets out the general eligibility criteria.
[7] Australian Citizenship Act 2007 (Cth), s 24(1).
Under paragraph (c) of s 21(2), the Minister must be satisfied that the applicant satisfies one of a number of specified requirements. In the present case, the general residence requirement under s 22 is relevant.
Section 22(1) provides that, for the purposes of s 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.
Subsections (1A) and (1B) of s 22 deal with the treatment of overseas absences. The former provides that where the person was absent from Australia for a part of the period of four years immediately before the day the application was made and the total period of absence or absences was not more than 12 months, then, for the purposes of s 22(1)(a), they are taken to have been present in Australia during each period of absence. Subsection (1B) contains a similar provision in respect of absences during the 12 month period referred to in s 22(1)(c), provided the total period of the absence or absences was not more than 90 days.
16.Further, s 22(9) of the Act affords (subject to certain preconditions being satisfied) a discretion to the Minister (or the Tribunal on review, as in this case) to effectively excuse non-compliance with the general residence requirements by applicants who are spouses or de facto partners of Australian citizens:
(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.
ISSUES FOR THE TRIBUNAL
It is not in dispute that at the time of making her application, Ms Yang did not satisfy the requirements specified in s 22(1) (a) and (c) of the Act. She was not present in Australia for the period of four years immediately before the day she made her application (paragraph (a)), nor was she present in Australia as a permanent resident for the 12 months immediately preceding the day she made her application (paragraph (c)). The provisions in subs 22(1A) and subs 22(1B) did not assist her, given that the total period of absences in the four year period was more than 12 months, and the total period of her absences in the 12 months preceding the application was in excess of 90 days.
Consequently, Ms Yang would only be eligible for Australian citizenship if the discretion in s 22(9) were exercised in her favour. That subsection contains four preconditions that need to be satisfied before the discretion can be enlivened. There is no doubt that Ms Yang satisfies those listed in paragraphs (a), (b) and (c) of the subsection: she was the spouse of an Australian citizen during her periods of absence; she was not present in Australia during those periods; and she was a permanent resident during those periods. The only precondition which is contentious is that in paragraph (d), namely whether during those periods of absence, she had “a close and continuing association with Australia”.
That therefore raises the following issues for my consideration:
(a)whether Ms Yang meets the requirement in s 22(9)(d), that she had “a close and continuing association with Australia” during the periods of her absence;
(b)if so, whether the discretion under s 22(9)(d) is enlivened; and
(c)
if the discretion is enlivened, whether it should be exercised by the Tribunal in
Ms Yang’s favour.
I address those issues below.
CONSIDERATION
Did Ms Yang have “a close and continuing association with Australia” during her periods of absence?
Before I consider Ms Yang’s circumstances, it is timely to reflect on what is meant by the phrase, “close and continuing association with Australia”, and what factors are to be considered in determining whether such an association exists.
What is meant by “a close and continuing association with Australia”?
The phrase, “a close and continuing association”, is not defined in the Act. It is therefore necessary to have recourse to the plain or ordinary meaning of the words that make up the phrase, in the context in which they appear. The Concise Oxford English Dictionary defines “close” as “(of a connection…) strong”; “continue” as meaning “remain in existence…or a specified state”; and “association” as “a connection or cooperative link between people or organizations”. The Macquarie Dictionary offers similar definitions, defining “close” as “near, or near together, in space, time, or relation”; “continue” as “to last or endure”; and “association” as “the act of associating; …connection or combination”.
It is clear from the wording of s 22(9)(d) that Ms Yang, as the applicant for citizenship, has to establish to the Tribunal’s satisfaction that she had “a close and continuing association with Australia” during each of the periods for which she seeks the exercise of the discretion;[8] it is not sufficient for her simply to show that she now has the requisite association.[9]
[8] Minister for Immigration and Border Protectionv Han [2015] FCAFC 79, [41] (Flick, Murphy and Griffiths JJ); and PMYL & Anor and Minister for Immigration and Border Protection [2014] AATA 148, [10] (SM Britton).
[9] Al- Hadethi and Minister for Immigration and Border Protection [2016] AATA 447, [57], (DP Deutsch).
The Citizenship Policy (“Policy”) provides policy guidance to decision-makers in carrying out their functions under the Act. Generally, the Tribunal applies such policy unless there are cogent reasons not to do so;[10] I am not aware of any such reasons to warrant departure from the Policy in this instance.
[10] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640 (Brennan J).
25.Concerning the assessment of whether the criterion in s 22(9)(d) of the Act is satisfied, the Policy states:
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:
·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 partner
·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 [sic.] 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) more weight should be given to the listed factors if the person has been lawfully and physically present in Australia for at least 365 days in the four 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.[11]
[11] Citizenship Policy (1 June 2016), pages 95-96.
26.Previous decisions of this Tribunal have emphasised that whether an applicant for citizenship had “a close and continuing association with Australia” throughout the relevant period(s) is ultimately a question of fact to be objectively assessed having regard to all the relevant factors, including, but not limited to, the factors listed in the Policy.[12] The forming of an opinion as to whether a person has demonstrated the requisite association is “not a simple mechanical exercise to be undertaken by merely tallying the relevant factors”,[13] or by treating the listed factors in isolation or simply “ticking” them off individually as having been satisfied.[14] What is required is:
[12] See, e.g. Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689, [28] (SM Britton); Al-Hadethi and Minister for Immigration and Border Protection [2016] AATA 447, [36] (DP Deutsch).
[13] Surjanto and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 689, [28] (SM Britton).
[14] Taher and Minister for Immigration and Border Protection [2013] AATA 917, [47] (SM Fice).
… a qualitative assessment of the ultimate significance (of) an applicant’s circumstances and whether or not they merited characterisation as evidence of “a close and continuing association with Australia”. In that assessment the fact and extent of the applicant’s periods of Australian presence were highly relevant considerations.[15]
[15] Li and Minister for Immigration and Border Protection [2015] AATA 270, [27] (SM Taylor SC).
Having set out the relevant principles, I turn to the factors on which Ms Yang relies in seeking to establish the requisite association.
Ms Yang’s circumstances
The submissions on behalf of Ms Yang were largely centred on the 11 factors listed in the Policy. I summarise those submissions below, as well as noting the Minister’s response to them. Where appropriate, I also comment on those specific factors before undertaking an overall assessment of the circumstances and determining whether Ms Yang had “a close and continuing association with Australia” at the relevant times.
Migration to, and establishing a home in, Australia prior to the period overseas
There is no suggestion that Ms Yang migrated to Australia prior to the relevant period.
30.While on a visit to Australia in early 2011, Ms Yang and her husband made an offer to purchase a house at Pacific Pines on the Gold Coast. The offer was initially rejected, but after they had returned to China, they were advised that their offer had been subsequently reconsidered and accepted. The purchase proceeded on 7 March 2011, but Ms Yang and her husband did not return to Australia until 28 July 2011. During that trip (which was for a period of 13 days[16]), they finalised the necessary paperwork for the house. They did not move in immediately; the house remained vacant in anticipation of their homecoming. In late 2011, Ms Yang began to send the majority of their items in China to the Gold Coast, including household and personal items. However, Mr Pfanner’s employment in China was unexpectedly extended, which caused them to postpone their plans to return to Australia. Mr Pfanner told me at the hearing that he had made a few short visits to Australia to undertake some maintenance on the house pending their permanent return. The house therefore remained unoccupied (apart from by Ms Yang and Mr Pfanner when at the Gold Coast) until 28 April 2016, when they returned to Australia permanently.[17]
[16] Exhibit 2, Applicant’s submissions dated 12 December 2016, page 17.
[17] Ibid, pages 10 and 13.
For the Minister, it is said that the mere sending of items to Australia does not indicate that Ms Yang had established a home in Australia at the time.[18]
[18] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions dated 13 February 2017, [25].
I agree. While I understand Ms Yang’s explanation, the undeniable fact is that the house at Pacific Pines remained largely unoccupied for some five years, during much of which time Ms Yang was overseas. The mere storage of household and personal items in an unoccupied house does not, in my view, amount to establishing a home (which connotes a fixed residence by a person or family). I therefore do not consider that Ms Yang could be said to have migrated to, or established a home in, Australia prior to the relevant period.
Australian citizen children
Ms Yang does not have any children of her own. However, Mr Pfanner has three children (all of whom are Australian citizens), who are considered Ms Yang’s step-children. One of those children has two children of her own. Ms Yang says that, over time, she has developed close ties with Mr Pfanner’s family, which must be recognised in its own right.[19]
[19] Exhibit 2, Applicant’s submissions dated 12 December 2016, pages 7-8 and 11; and Exhibit 2(c), statutory declaration of Ms Yang declared 25 October 2016, [9].
On behalf of the Minister, it is submitted that a close relationship with Australian family members does not equate to a close and continuing association with Australia.[20]
[20] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions dated 13 February 2017, [26].
I accept the Minister’s submission on that point. It is well established by previous decisions of this Tribunal that whilst an applicant for citizenship may have a close and continuing association with Australian family, that is not the same as having a close and continuing association with Australia. A person’s close and continuing association with Australian family is but one factor to be taken into account in determining whether a person had “a close and continuing association with Australia”.[21]
[21] Sabumei and Minister for Immigration and Border Protection [2014] AATA 648, [25] (SM Walsh). See also Taher and Minister for Immigration and Border Protection [2013] AATA 917, [47] (SM Fice); and Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118, [52] (SM Britton).
Long term relationship with Australian citizen spouse
It is not in dispute that Ms Yang is in a long term relationship with Mr Pfanner, an Australian citizen. They have been in a committed relationship since August 2003 and married on 27 September 2006.[22]
[22] Exhibit 2, Applicant’s submissions dated 12 December 2016, page 11.
Extended family in Australia
While Ms Yang’s immediate family resides in China, she has a large extended family in Australia on her husband’s side. All are Australian citizens. In addition to Mr Pfanner’s children and grandchildren mentioned already, he has two brothers who reside in Melbourne. One of them has six children. Ms Yang says that she has established a close relationship with her husband’s family and that she and he often travel to Melbourne to visit them. Over time, Ms Yang says that she has developed close ties with Mr Pfanner’s family, which must be recognised in their own right.[23]
[23] Ibid.
As I mentioned earlier, while an applicant for citizenship might have close ties with an extended Australian family, that is not the same as having a close and continuing association with Australia. A close familial relationship is, however, a factor to be considered in determining whether the applicant has the requisite association with Australia.
Regular return visits to Australia
39.In the four years immediately preceding her citizenship application, Ms Yang travelled to Australia on six occasions:
·23 November 2011 – 7 April 2012 (137 days)
·28 August 2012 – 15 February 2013 (172 days)
·3 August 2013 --18 August 2013 (16 days)
·3 February 2014 – 18 February 2014 (16 days)
·26 June 2014 – 22 July 2014 (27 days)
·22 June 2015 – 2 August 2015 (42 days).[24]
[24] Ibid, pages 17-18.
The Minister contends that the visits were limited in number.[25] In particular, the Minister’s delegate noted that, following the two earlier lengthy visits, Ms Yang made only four visits to Australia in a period just short of three years.[26]
[25] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions dated 13 February 2017, [27].
[26] Exhibit 1, T Documents, T 8, page 71, Department’s letter to Ms Yang dated 28 September 2016.
It was also submitted on behalf of the Minister that Mr Pfanner’s Movement History revealed that he visited Australia on a number of occasions unaccompanied by Ms Yang.[27] According to that record, he travelled without her on four other occasions in the relevant four year period preceding the making of the application.[28]
[27] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions dated 13 February 2017, [27].
[28] Visits arriving 27 May 2013, 1 November 2014, 8 February 2015 and 21 October 2015: Exhibit 5(a), Movement History for Mr Pfanner dated 13 February 2017.
Ms Yang explained that the frequency of her travel to Australia decreased following the disappearance of Malaysian Airlines flight MH370 in March 2014, and a number of other aviation incidents about the time.[29] As a result, she was anxious about flying, although she agreed that she had flown since. On the occasions when Mr Pfanner travelled alone to Australia, Ms Yang said that she would stay in an apartment owned by her family in China and socialise with her family and friends. She was not working, and had access to a Chinese bank account, as well as Mr Pfanner’s bank account.
[29] Exhibit 2, Applicant’s submissions dated 12 December 2016, page 12.
At the hearing, Mr Pfanner confirmed that he had travelled by himself on a few occasions to attend to maintenance on the Pacific Pines house, as well as to undergo tests for a heart condition. The trips in those cases were relatively short and he did not think it was necessary for Ms Yang to accompany him. He also confirmed that Ms Yang was anxious about flying following the MH370 incident.
While I understand Ms Yang’s explanation, I do not think it could be said that her visits to Australia were “regular”, in the sense of recurring at short uniform intervals, or having occurred frequently.[30]
Regular periods of residence in Australia
[30] See Concise Oxford English Dictionary (12th edition, 2011).
It is submitted on behalf of Ms Yang that during her first two visits referred to in paragraph 39 above (being for four and a half months and six months respectively), she resided in the Pacific Pines home. Because of the prolonged stay on each occasion, she says those periods should be considered times of close association with Australia.[31]
[31] Exhibit 2, Applicant’s submissions dated 12 December 2016, page 12.
The Minister contends that Ms Yang did not have regular periods of residence in Australia and that in fact, her visits during the relevant period were short-term holidays.[32]
[32] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions dated 13 February 2017, [28].
This Tribunal has remarked on numerous occasions of the paramount importance of the general residence requirements and the need for applicants to be physically present in Australia for significant periods of time.[33] As SM Britton observed in Ul Haque and Minister for Immigration and Citizenship, while physical presence is not determinative, it is nonetheless highly relevant to the nature of a person’s association with Australia.[34] Similarly, in another decision, DP Constance noted that “(p)hysical presence in Australia is undoubtedly an important element in the development of a close and continuing association with Australia”.[35]
[33] See, e.g., Taher and Minister for Immigration and Border Protection [2013] AATA 917, [10], [14] and [47] (SM Fice).
[34] [2013] AATA 118, [50].
[35] Kim and Minister for Immigration and Border Protection [2015] AATA 67, [31] (DP Constance).
While I note Ms Yang’s explanation for her absences, the fact is that those absences were significant and considerably disproportionate to the relevant timeframes to be considered in assessing the general residence requirement. As I mentioned earlier, on her own calculations, Ms Yang was present for just 408 days (and absent for 1,053 days) in the four years before her citizenship application, and for 42 days (absent 323 days) in the 12 months preceding the application. I therefore believe that Ms Yang’s physical absence for considerable periods in the lead up to her citizenship application is a significant factor for consideration.
Intention to reside in Australia
Although she and her husband met in China and together spent many years residing there, Ms Yang told me that it was Mr Pfanner’s desire to return to Australia when he completed work. She “had no choice”; the reason she wanted to live in Australia was because her husband wanted to.
Whatever the reason, it was not disputed that they both intended to reside in Australia after Mr Pfanner’s employment commitments concluded. In fact, those commitments have now ceased. Ms Yang and Mr Pfanner returned on 28 April 2016 and have been residing permanently in Australia since that time. Further, in October last year they purchased a new home in joint names.[36]
On leave from employment in Australia while accompanying spouse overseas
[36] Exhibit 2, Applicant’s submissions dated 12 December 2016, pages 12-13.
This factor is not relevant in the present case. It is agreed that there is no evidence of Ms Yang having any actual employment or business activities in Australia; it is not a situation where she was on leave from any employment in Australia.[37] In fact, she has not worked since 2009.[38]
Ownership of property in Australia
[37] See ibid, page 13 and Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions dated 13 February 2017, [29].
[38] Exhibit 2, Applicant’s submissions dated 12 December 2016, page 15.
Ms Yang was critical of the delegate’s decision to place limited weight on her claim to have a close tie with Australia through ownership of the Pacific Pines house. The delegate noted that the house was solely in Mr Pfanner’s name, and that both the rates and electricity accounts were in his name alone.[39]
[39] Exhibit 1, T Documents, T 8, page 71, Department’s letter to Ms Yang dated 28 September 2016.
Ms Yang contended that the house would be considered as property of the relationship under family law, in that her contribution as a homemaker would be taken into account. She explained that the house was put solely in Mr Pfanner’s name on legal advice, as the purchase occurred while they were in China and before Ms Yang was granted permanent residency. Ms Yang also pointed to the fact that at the time of her application, she held substantial funds in bank accounts with the Commonwealth Bank.[40]
[40] Exhibit 2, Applicant’s submissions dated 12 December 2016, pages 13-15.
While the Minister accepted that the house could form part of the matrimonial property pool in the event that the relationship broke down, it was submitted that Ms Yang had no legal right of ownership to the property.[41]
[41] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions dated 13 February 2017, [30].
I accept that under Australian family law, Ms Yang may have a right to claim an entitlement to a share of the property of the marriage. However, that does affect the legal title or ownership of the house as at the relevant times. To the world at large, Mr Pfanner would be considered the sole registered proprietor of the property at the relevant times.
I accept that during the relevant periods, Ms Yang held a significant amount in several bank accounts with the Commonwealth Bank.[42] However, by their very nature, they are liquid assets.
Income tax paid in Australia
[42] Exhibit 1, T Documents, T 6, page 57, Commonwealth Bank NetBank screen print.
Ms Yang states that she did not pay income tax in Australia over the four years preceding the application for citizenship.[43] She has never had paid employment in Australia and has not worked in China since 2009.
Active participation in Australian community based activities or organisations
[43] Exhibit 2, Applicant’s submissions dated 12 December 2016, page 15.
Ms Yang submits that she understands the nature of the application for citizenship and possesses a basic knowledge of the English language. She successfully completed her citizenship exam.[44]
[44] Ibid, page 16.
She states that she and her husband have many friends in Queensland and Victoria, with whom they are in constant contact. On that basis, she contends that she has maintained a close and continuing association with Australia.[45]
[45] Ibid.
In support of her submission, Ms Yang produced two letters from friends, confirming that they maintain contact with Ms Yang and her husband while they are in China, and socialise with them when they are in Australia.[46]
[46] Exhibit 3, letter from Ms Savill Isabel dated 9 December 2016; and Exhibit 4, letter from Mr Keith Parker dated 8 December 2016.
Apart from that, there is no evidence of Ms Yang having any active participation in Australian community based activities or associations.
Other matters
At the hearing before me, some criticism was levelled at the Department as to the manner in which Ms Yang’s application for citizenship was processed following her and her husband’s return to Australia. [47]
[47] See also Exhibit 2, Applicant’s submissions dated 12 December 2016, page 2.
63.
While I appreciate that the process may have been inconvenient and frustrating for
Ms Yang and Mr Pfanner, I make no finding on this matter. It is outside the scope of the review of the substantive decision which I am undertaking; I do not have any detailed material before me concerning that process. Such matters are more appropriately addressed directly with the Department.
Overall assessment
It was submitted on behalf of Ms Yang that she satisfied at least eight of the factors listed in the Policy. Given that, and the fact that she had been lawfully and physically present in Australia for at least 365 days in the four years preceding her application, it was said that more weight should be given to the listed factors. In particular, it was contended that the delegate placed too much weight on the absence of visits in the latter part of the four years, thereby diminishing the weight that should have been afforded to the lengthy visits at the beginning of the period.[48]
[48] Exhibit 2, Applicant’s submissions dated 12 December 2016, page 18.
While I understand the reasoning behind that submission, I believe, with respect, that it oversimplifies the task that falls to the decision-maker (in this case, the Tribunal) in forming an opinion as to whether the applicant for citizenship has demonstrated the requisite association with Australia. As has been emphasised by the Tribunal previously, that assessment is not a simple mechanical exercise to be undertaken by merely tallying the relevant factors, or ticking them off individually as having been satisfied. Rather, a qualitative assessment of the ultimate significance of the applicant’s circumstances is required.[49]
[49] See [26] above and the decisions specifically referred to in that paragraph and the related footnotes.
The amount of time that the applicant has been physically present in Australia is obviously important. But that is not to lose sight of the significance which also attaches to the nature, extent and quality of the ties which the applicant has formed with Australia. That is of particular relevance in this case.
67.Ms Yang’s ties with Australia are largely through her husband. She has never been to Australia without Mr Pfanner. She explained that it was Mr Pfanner’s desire to return permanently to Australia once his work commitments in China ceased. Although they met in China and have spent the overwhelming majority of their life together in China (as opposed to Australia), Ms Yang said that she had “no choice” but to go to Australia with him. That is despite her parents, sister and friends continuing to reside in China. Over time, she has formed a good relationship with Mr Pfanner’s Australian family and his friends. However, as mentioned earlier, having a good familial relationship is not the same as having a close and continuing association with Australia.
There is no suggestion that Ms Yang has actively participated in Australian community based activities or organisations.
Insofar as business and financial ties are concerned, she has not worked in Australia and has paid no tax. During the relevant periods, she did not own real estate in Australia, although she held a significant amount of cash in the bank. Since returning to and residing in Australia, she and Mr Pfanner have purchased a house in their joint names.
As mentioned earlier, Ms Yang’s direct family, comprising her parents and sister, reside in China. She has friends in China, with whom she socialises. On the occasions when
Mr Pfanner travelled to Australia without her, she resided in an apartment owned by her family. Although she has not worked in China since 2009, she has maintained her relevant tourism and travel licences in China and has undertaken training courses in order to renew those licences.[50]
[50] Exhibit 2(c), Ms Yang’s statutory declaration declared 25 October 2016, [28].
There is no dispute that Ms Yang was absent for significant amounts of time during both the four years preceding her application and the 12 months before it. In the period, she made only six trips to Australia. Her visits were irregular and, apart from two of several months’ duration, were relatively short. In all, those absences serve to highlight the limited ties which Ms Yang in fact had with Australia during the relevant periods. As SM Fice observed in Taher and Minister for Immigration and Border Protection:
…(A)s is stated in the preamble to the Citizenship Act, citizenship is about the membership of a community with common interests and involving reciprocal rights and obligations. Involvement with the Australian community may be demonstrated by many factors, some of which are listed above. It is plainly difficult to be involved with the Australian community if the person claiming so has not been physically present in Australia for significant periods of time. Hence, the paramount importance given to meeting the general residence requirements before a person becomes eligible for citizenship.
I accept that the evidence discloses Mr Taher has a strong association with his direct and extended family in Australia. However there is scant evidence about involvement in the Australian community. No doubt that is due to a large extent to his very limited presence in Australia during the 4 year period during which eligibility is assessed. The total of 168 days out of 1095 days, which is the requirement to meet the general residence eligibility criterion, is plainly negligible. Similarly, 40 days in Australia out of a required 275 days in the 12 month period prior to application is hardly sufficient to establish any community ties or to gain a working appreciation of Australian culture.[51]
[51] [2013] AATA 917, [47] - [48].
Considering those various factors together, I am not satisfied that Ms Yang had “a close and continuing association with Australia”, in the sense of having a strong and continuing connection with Australia at the relevant times.
Is the discretion enlivened?
In finding that Ms Yang did not have a close and continuing association with Australia, it follows that the precondition in s 22(9)(d) has not been satisfied. Accordingly, I do not consider that the discretion is enlivened in this instance.
If the discretion is enlivened, should it be exercised in Ms Yang’s favour?
In light of my finding that Ms Yang did not have a close and continuing association with Australia and that the discretion was therefore not enlivened, it is not necessary to address this question. Nevertheless, for completeness, I briefly consider it below.
If the requirement in s 22(9)(d) is satisfied and the discretion is enlivened, the question arises as to whether the discretion should be exercised in Ms Yang’s favour. That requires a consideration of whether there is good or sufficient reason to do so, absent which she is not entitled to the benefit of the exercise of the discretion in her favour.[52]
[52] Kumar v Minister for Immigration and Border Protection [2015] FCA 446, [21], and [25]-[26] (Edmonds J).
The width of that discretion is informed by the subject matter and the scope and purpose of the statutory enactment in question (namely, s 22).[53] It was submitted on behalf of the Minister that, given the paramount importance of residence in Australia to the determination of a grant of citizenship, any dispensation from the resident requirements should not be granted lightly.[54]
[53] Ibid, [24].
[54] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions dated 13 February 2017, [36].
In the present circumstances, it is said that, in the event that the discretion were enlivened, it should not be exercised in Ms Yang’s favour, since she has not identified any good reason why it should be so exercised. Indeed, it is submitted that there are several factors which weigh against the favourable exercise of the discretion: the fact that her non-compliance with the general residence requirements is significant; the fact that her personal connections with Australia are limited; and the fact that no prejudice or harm will be suffered in the event that the discretion is not exercised.[55]
[55] Exhibit 5, Respondent’s Statement of Facts, Issues and Contentions dated 13 February 2017, [37]-[38].
I agree with, and accept, the Minister’s submissions. I have remarked earlier on the first two points. As to the last factor (no prejudice or harm), I note that Ms Yang retains her permanent resident status and will presumably be able to reapply for Australian citizenship in the future, now that she and Mr Pfanner have returned to, and are residing in, Australia.[56] Therefore, I would not be prepared to exercise the discretion in Ms Yang’s favour, even if it were enlivened.
[56] See Gorshechnikova v Minister for Immigration and Border Protection [2014] AATA 891, [16] (SM McCabe).
CONCLUSION
For the reasons outlined above, I do not consider that Ms Yang had a close and continuing association with Australia during the relevant periods of absence. The discretion in s 22(9)(d) of the Act is therefore not enlivened.
80.Even if I were wrong, and the discretion were enlivened, I do not consider there is good or sufficient reason why it should be exercised in Ms Yang’s favour in this instance.
81.The decision under review is therefore affirmed.
I certify that the preceding 81 (eighty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter
.........................[Sgd]...............................................
Associate
Dated: 23 March 2017
Date of hearing: 7 March 2017 Advocate for the Applicant: Ms Lidia Marbelly Castillo
Queensland Migration PracticeSolicitors for the Respondent: Mr Matthew Hawker
Sparke Helmore
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