Yunheng Tang and Minister for Immigration and Border Protection
[2014] AATA 917
•11 December 2014
[2014] AATA 917
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4413
Re
Yunheng Tang
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Ms S Taglieri (Member)
Date 11 December 2014 Place Hobart The decision under review is set aside.
........................................................................
Ms S Taglieri (Member)
CATCHWORDS
Cancellation of citizenship approval - on grounds that not likely to reside or to continue to reside in Australia or maintain a close and continuing relationship with Australia - cancellation set aside
LEGISLATION
Australian Citizenship Act 2007 ("ACA") ss 21(2), 24, 26, 28
CASES
Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Taslim v Secretary, Department of Family & Community Services (2004) FCA 789
Sabumei v Minister for Immigration and Border Protection [2014] AATA 648
SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Ms S Taglieri (Member)
INTRODUCTION
Mr Tang applied for Australian Citizenship after residing in Australia for a time. His application for citizenship by conferral was approved by the Respondent on 18 September 2012[1] (“the approval decision”). He was advised that he was required to take a pledge of commitment[2] within 12 months of the approval decision, for the citizenship to be validly attained[3].
[1] Pursuant to section 24 of the Australian Citizenship Act 2007 (“ACA”)
[2] As required by section 26 of the ACA
[3] By virtue of section 28 of the ACA
Before Mr Tang took the pledge and while he was overseas, the Respondent advised by letter dated 12 July 2013 that he was considering cancelling the approval decision. On 9 August 2013, the Respondent then cancelled the approval decision[4] (“the cancellation decision”).
[4] See T2 and T8 of T documents
Mr Tang believes the cancellation decision is wrong and that he still satisfies the requirements of citizenship by conferral and would have taken the pledge within 12 months, if the cancellation decision had not been made. He says that once the cancellation decision was made he was no longer able to take the pledge.
The Respondent only relied on a change in the eligibility requirements relating to residence and association with Australia, and the merits of the cancellation decision were confined to arguments about those grounds at hearing.
I am required to determine if the cancellation decision was the correct or preferable decision. This in turn requires consideration of whether the evidence available and considered by to the Respondent, demonstrated that Mr Tang no longer:
(a) Was likely to reside or continue to reside in Australia; or
(b)Was likely to maintain a close and continuing association with Australia.
These being the 2 grounds upon which the cancellation decision was made.[5]
[5] Page 18 of T documents
RESIDE IN AUSTRALIA?
When the Respondent approved Mr Tang’s citizenship application in September 2012, he was satisfied Mr Tang met the eligibility requirements for granting citizenship by conferral, including requirements relating to residence.
What evidence then is there of change in respect of that eligibility requirement between 18 September 2012 and the cancellation decision on 9 August 2013?
There is no doubt that the Tribunal must consider the evidence that existed at the time of the cancellation decision and by reference to that, the Respondent says that the evidence shows a change in where Mr Tang intended to reside and/or a change in likelihood of maintaining a close and continuing association with Australia. The evidence the Respondent relies upon can be summarised as follows:
1.After the approval decision, Mr Tang spent far less time actually residing in Australia. He was absent from Australia for 10.5 months, during which he lived, worked and married in China;
2.He married a Chinese Resident;
3.Mr Tang was concentrating on the China market in so far as his USANA commission work was concerned;
4. There was no evidence of tax paid in Australia;
5.There is no evidence of commitment to Australia or evidence Mr Tang is meeting responsibilities in Australia;
6.Although an application was made for a Visa for Mr Tang’s wife, it was not made until December 2013.
7.Mr Tang has friends but not family or close relationships with people in Australia.
Mr Tang gave evidence at the hearing and was cross-examined. In summary, his evidence was as follows:
(i)He had met his now wife in early 2012 while visiting China.
(ii)In June 2012 he applied for Australian citizenship.
(iii)He maintained contact with his now wife via phone, email and internet between February 2012 and October 2012, while he resided in Australia.
(iv)He returned to China in October 2012, slightly later than first intended to affirm his relationship.
(v)His time in China from October 2012 allowed introductions between his and his now wife’s family members. While in China a decision was made rather spontaneously to marry. This was prompted due to pressures about his age and his wife’s perspective that either they committed to each other or did not pursue their relationship.
(vi)After having decided to marry, time elapsed while arrangements that had to be made for the wedding, and the marriage occurred in January 2013.
(vii)Mr Tang then required treatment for a nasal condition and was hospitalised for about 7 to 9 days. After surgery, he recuperated at the home his parents had purchased for their use while in China.
(viii)At various times while in China and when able, he introduced the USANA products and sold them, but also continued to sell to his customers in Australia. It appears he also made attempts to find a customer base in Hong Kong.
(ix)He also maintained a bank account in Australia.
There was also evidence given to me by Mr Tang that he very much wanted to be an Australian Citizen and wanted to live and work in Australia. He called Mr Mark Baker to give evidence about this also. Mr Tang gave evidence of his previous involvement in promoting Tasmania as a tourism destination and his voluntary services provided for a promotional film. I formed the distinct view from the evidence, that Mr Tang genuinely held a desire to be in Tasmania and had an affection for it and its people, including friends like Mr Baker and Mr Byrne (whose statement was taken into evidence, subject to omission of the parts objected to[6]). I found all this evidence to be credible and I accept it.
[6] Exhibit A5
There was evidence that Mr Tang’s wife has been granted a partner Visa on 27 August 2014, but I do not know if she has entered Australia since the Visa was granted.[7] A record of Mr Tang’s entry and exit from Australia[8] was in evidence and Mr Tang did not dispute its accuracy.
[7] Exhibit A2
[8] Exhibit R1
While absent from Australia between October 2012 and his return in August 2013, the evidence is that various communications occurred between Mr Tang and an officer of the Launceston City Council, regarding taking the pledge[9], initially at public ceremony and later, a private one. The history of the attempts to appoint a time and take the pledge, are recorded in the chronology provided as an aid to the Tribunal by the Respondent’s Counsel. It is also evidenced in the T Documents. Mr Tang did not dispute the history.
[9] Required by section 26 of the ACA
In Re Ho and Minister for Immigration and Ethnic Affairs[10], Deputy President McMahon considered the meaning of the term "likely to reside in Australia" at [31]:
"It cannot mean "likely to take up residence in 18 months or 2 years time" or likely to reside some time in the indefinite future if economic conditions permit and if a suitable job can be found. 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 a reasonable time thereafter."
[10] (1994) 34 ALD 664
Whether Mr Tang was still likely to reside or continue to reside in Australia depends on the finding I make about whether on the evidence available at the time of the cancellation decision, I can be satisfied that Mr Tang was likely to reside in Australia within a reasonable time. The meaning of reside in this context means that there must be a physical presence in Australia and an intention to treat that place as home[11].
[11] Taslim v Secretary, Department of Family & Community Services [2004] FCA 789 approving of Wybrow v SDSS [1992] AATA 315
I have no hesitation in concluding that Mr Tang at all relevant times intended to treat Australia as home as I accept his evidence. What is more difficult to determine is whether Mr Tang’s absence for 10.5 months and the factors identified at paragraph demonstrate that Mr Tang was not going to have a physical presence in and continue residing in Australia, within a reasonable time of being approved for citizenship.
This ultimately falls to be determined on the basis of whether the matters put by the Respondent merely evidence a temporary absence which is reasonably explained, or whether they demonstrate a material change in where Mr Tang actually lived and intended to live within a reasonable time.
What amounts to a reasonable time in the context of the principles of residence established in Re Ho and Minister for Immigration and Ethnic Affairs, cannot be a fixed period and must depend on the circumstances of each case. Given the explanations given by Mr Tang about his relationship affirmation, marriage and health troubles, I am persuaded that his absence living in China for 10.5 alone does not mean that he no longer was likely to reside or continue to reside in Australia.
The other factors relied upon by the Respondent similarly do not persuade me that he was no longer likely to reside or continue to reside in Australia. The work for USANA is a neutral factor as his sales continued in both China and Australia. Similarly, his non-payment of tax in the 10.5 month period is a neutral factor, as it is very clear that his earnings during that time were confined to the commissions from USANA products and they were minimal (likely to be below the income tax threshold).
Further, the absence of an Australian spouse alone cannot operate to demonstrate lack of residency. In addition, Mr Tang’s contacts and interactions with the Launceston Council staff regarding his return to Australia, his intention and desire to take the pledge within the required 12 months, in my view affirm his commitment to Australia. His continuing friendships and maintenance of an ABN and a bank account in Australia also assist in persuading me that his absence from Australia after October 2012 was temporary and reasonably explained.
I conclude that cancellation of the approval decision on the grounds that Mr Tang was not likely to reside or continue to reside in Australia was incorrect.
ASSOCIATION WITH AUSTRALIA?
The evidence relevant to whether Mr Tang was likely to maintain a close and continuing association with Australia is set out above and will not be repeated. I agree with Senior Member Walsh in Sabumei v Minister for Immigration and Border Protection[12], that whether this eligibility criteria was no longer satisfied was a question of fact to be objectively assessed having regard to all relevant factors, including those identified in the Australian Citizenship Instructions.[13]
[12] [2014] AATA 648 at paragraph 30
[13] T4 of the T documents
As observed above, in Mr Tang’s case, some of the factors are neutral, meaning that the absence of evidence of the factor(s) neither contributes or otherwise, to being satisfied that there is likely to be a continuing and close association. The list of factors is inclusive and not exhaustive and I am entitled to consider all the relevant facts in evidence before me. I am satisfied that Mr Tang:
(a)was always going to return to Tasmania to live and work;
(b)would have taken the pledge within the required time if allowed to do so; and
(c)in fact returned before he was required to take the pledge.
I conclude that his absence in China after October 2012 was temporary and reasonably explained, and so I consider there was no basis for concluding that he was unlikely to have a close and continuing association with Australia.
In reaching the above conclusions I have had regard to the Australian Citizenship Instructions[14], which were before me and referred to by the Respondent’s Counsel.
[14] T4 of the T documents
Counsel for the Respondent also made submissions about the responsibilities of citizenship and submitted that Mr Tang had not assumed those. It is unnecessary to make a finding about this. As this was not a basis for denying the application for citizenship initially, and I have found that the change in circumstances between the approval decision and the cancellation decision were temporary and reasonably explained, it cannot form a basis for the cancellation decision.
CONSEQUENCES OF FINDINGS MADE
Mr Tang was deprived of making his pledge within the 12 months, when the Respondent cancelled the approval decision. As such, it would be contrary to principles of fairness in my view for the Respondent to now take action to cancel approval of citizenship for failure to take the pledge, without allowing Mr Tang a reasonable opportunity to take the pledge.
CONCLUSION
As I have found that the evidence available at the relevant time did not warrant a finding that Mr Tang was no longer likely to reside or continue to reside in Australia or maintain a close and continuing association with Australia, the cancellation decision was not the correct or preferable decision. The decision under review is set aside. I recommend that Mr Tang be allowed until 30 April 2015 to now take the pledge, before the Respondent considers whether any action pursuant to section 25(3) of the ACA is warranted.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri (Member) ........................................................................
Administrative Assistant
Dated 11 December 2014
Date(s) of hearing 28 October 2014 Applicant In person Solicitors for the Respondent Mr David Wilson, AGS
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