Zhang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) - [2021] AATA 3215

Zhang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 3215 (7 September 2021)
Division:GENERAL DIVISION
File Number(s): 2020/6648
Re:Mingyuan Zhang
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:7 September 2021
Place:Sydney

The decision under review is affirmed.
.....................................[sgd]..................................
Chris Puplick AM, Senior Member
CATCHWORDS
CITIZENSHIP – by conferral – where the applicant is under 18 – where the applicant is overseas – Citizenship Procedural Instructions – person under 18 – assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia – assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship – best interests of the child – purposes of citizenship - decision affirmed
LEGISLATION
Australian Citizenship Act 2007 (Cth) Preamble, ss 21 and 24
Nationality Law of the People’s Republic of China (September 1980) Article 3
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Drake v Minister for Immigration and Ethnic Affairs (1979) 746 FLR 409
ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
G v Minister for Immigration and Border Protection [2018] FCA 1229
Gettings and Minister for Immigration and Border Protection [2014] AATA 357
Ho and Minister for Immigration and Ethnic Affairs [1994] AATA 516
McCoy and Minister for Immigration and Border Protection [2014] AATA 771
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Rasiah and Minister for Immigration and Border Protection [2015] AATA 630
See and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1327
Shi v Migration Agents Registration Authority [2008] HCA 31
Sie and Minister for Immigration and Border Protection [2014] AATA 60
Supunyachotsakul and Minister for Immigration and Border Protection [2014] AATA 103
Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943
Ul Haque and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 118
SECONDARY MATERIALS
Australian Citizenship Policy Statement
CPI 4 - Australian Citizenship by Conferral – Person under 18
CPI 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
CPI 12 - Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship
CPI 13 - Best interests of the child assessments
REASONS FOR DECISION
Chris Puplick AM, Senior Member
7 September 2021

This is an application for citizenship by conferral lodged on 6 March 2020 on behalf of a minor child (the Applicant) by his mother. The child was born in May 2007 and is a citizen of the People’s Republic of China (PRC). He was granted a Resident Return Visa (subclass 155) on 14 February 2017.
The Applicant’s mother (Zhimei Liu) was granted Australian citizenship on 15 October 2014 but since that date has not resided in Australia and in the four years prior to the lodgement of this application had only been in Australia for a total of 19 days.[1] The Applicant also has an Australian citizen sister, Alice, (born January 2013).
[1] Tribunal documents (T-documents) at 19. Ms Liu has been offshore since 19 October 2014.
Dual citizenship is not recognised by the PRC.[2]
[2] Nationality Law of the People’s Republic of China (September 1980) Article 3.
The child’s father (Huijun Zhang) remains a Chinese citizen and was granted an onshore Return Resident visa (subclass 155) on 4 May 2020. He has only visited Australia on a few occasions.
The family’s place of residence is Shanghai and there is a clear expectation that the family intends to continue to reside there and that an “immediate” return to live in Australia is not contemplated for economic reasons. To do so, they assert would be “sacrificing economic income in China”.[3]
[3] Applicant’s Submissions (16 October 2020) at 4.
Underlying this, according to direct oral testimony from the Applicant’s mother, is a desire to earn sufficient income to secure the best possible educational outcome for the Applicant and his sister, with a focus on being able to enrol the Applicant in a prestigious American university.
On 1 October 2020 a delegate of the Minister (the Respondent) refused the application under subsection 24(2) of the Australian Citizenship Act 2007 (Cth) (the Act).
On 23 October 2020 the Applicant applied for a review of that decision in this Tribunal where the matter was heard on 24 August 2021 using the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 protocols. The Applicant’s mother, as a witness, appeared from Shanghai and was assisted by an interpreter in Mandarin. The Applicant was formally represented by his Migration Agent.
THE LEGISLATIVE FRAMEWORK
Citizenship by conferral may be granted under section 21 of the Act but may only be granted if an applicant satisfies all the requirements which are set out in subsections 21(1) to 21(8).
In respect of this application, the relevant subsection is 21(5) which provides:
(5) A person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) is aged under 18 at the time the person made the application; and
(b) is a permanent resident:
(i) at the time the person made the application; and
(ii) at the time of the Minister’s decision on the application.
However, meeting such qualifications does not necessarily confer citizenship. Subsection 24(2) further provides:
(2) The Minister may refuse to approve the person becoming an Australian citizen despite the person being eligible to become an Australian citizen under subsection 21(2), (3), (4), (5), (6) or (7).
DECISION-MAKING: LAW AND POLICY
When the Tribunal (standing in the shoes of the Minister in such cases)[4] makes any decision on applications before it, it must do so within certain constraints.
[4] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
The first of these is the legislation under which the decision was made. The Tribunal must apply the provisions of the legislation as they have been enacted by the Parliament. In particular, if certain requirements must be met and there is no discretion provided in relation to them, failure to meet such requirements would be fatal to an application.
On the other hand, legislation is often written so as to give a decision-maker discretion in how they apply the requirements. This is most often expressed by the use of the word “may” when it comes to authorising decisions to be made.
Where a discretion exists, decision-makers are sometimes further constrained by the statutory requirement to apply government “policy” which has been set out elsewhere than in legislation.
This “policy” may be expressed as either directions binding on the decision-maker, implemented as legislative instruments or else as a “guide” as to how the legislation is to be interpreted and applied.
Examples of binding policy directions may be found in section 499 of the Migration Act 1958 (Cth) which empowers the Minister to issue Directions about the processes and requirements in decision-making which are binding upon decision-makers (other than the Minister themselves). Similarly, subsection 26(1) of the Social Security Act 1991 (Cth) empowers the Minister to publish “impairment tables” which set out the criteria which a decision-maker must use in determining level of impairment to establish qualification for payment of certain social security benefits.
Conversely, “policy” may be expressed in the form of guides or instructions which are published to help decision-makers interpret certain requirements of the legislation but may not be completely binding on decision-makers in that they provide for levels of discretion which may be brought to bear, or they contain lists of matters to be considered which are not exhaustive. For example, the Social Security Guide assists decision-makers to navigate their way through the Social Security Act from sections 1-1260 in three volumes plus the schedules and appendices.
In this instance, the Tribunal must take note not only of the provisions of the Act but also the Australian Citizenship Policy Statement. This Statement was made on 27 November 2020 replacing a previous Citizenship Policy. It is augmented by a series of 33 separate Revised Citizenship Procedural Instructions (CPIs).
THE STATUS OF THE CITIZENSHIP PROCEDURAL INSTRUCTIONS
The fundamental approach of the Tribunal as it relates to statements of policy which are not specifically binding on decision-makers is set out in the decision of Brennan J (as he then was) in Drake and Minister for Immigration and Ethnic Affairs (No 2) :
These considerations warrant the Tribunal's adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice.
…
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice. When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.[5]
[5] (1979) 2 ALD 634 at 645.
However, there is also authority which focuses the responsibility of the Tribunal to make its own decision based upon the facts and evidence before it at the time of the hearing.[6]
[6] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].
In any event, the application of government policy to decision-making is not entirely a black and white or automatic process. As far back as 1979 the Full Federal Court held that:
If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.[7]
[7] Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409 at 420.
In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that, in relation to the responsibilities of a decision-maker, “[h]is discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified class of cases.”[8]
[8] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640.
In 1985 the Tribunal noted:
Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.[9]
[9] ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].
In 1994 the Full Federal Court opined:
It is right to say that the Tribunal, which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review...[10]
[10] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at [23]. Citations omitted.
Mortimer J, after a comprehensive review of the authorities on this matter concluded: [11]
[11] G v Minister for Immigration and Border Protection [2018] FCA 1229. Citations omitted and emphasis added.
171. An important point to make is that the justice or injustice of an outcome for a particular individual is not to be measured against the contents of the policy. Otherwise, the purpose of the point Brennan J is making would be lost. Justice or injustice is not found within a policy: it is found by looking at the overall circumstances of an individual’s case, with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it. Otherwise, again, the policy becomes a rule of law.
…
201. It can be seen from the authorities that there are a number of ways in which the dividing line between a lawful and unlawful approach to the use of a policy has been expressed:
•A decision must not be “so truncated by a policy as to preclude consideration of the merits of specified classes of cases”;
•A decision-maker must not “abdicate” her or his exercise of power to the terms of the policy;
•The policy should not “superimpose” a requirement or requirements that prevent a decision-maker from being satisfied of matters set out in the statute;
•The policy should not create a requirement or guideline that has an arbitrary character, in the sense of not being able to be justified or understood by reference to the statutory power in its context; and
•A policy statement should not be applied so as to prejudice a Tribunal’s independent assessment of the merits of the case.
…
210. …policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.
…
266. The passage in Drake (No 2) to which the Tribunal referred cannot become a mantra for decision-makers to avoid performing their task with active intellectual consideration of the material before them in a fulsome way, and not only in accordance with a structure imposed on the decision-maker by an executive policy. A Tribunal must give active intellectual consideration to what is the correct or preferable decision on the basis of all the material before it, in all of the circumstances before it. One of those circumstances is the existence, and content, of an executive policy.
The Tribunal must also carefully consider and evaluate all the submissions or representations made to it on:
the principle that when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria.[12]
[12] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45]. Citations omitted.
THE RELEVANT CPIS
This application requires consideration of a number of the CPIs, in particular, numbers 4, 11, 12 and 13:
“CPI 4 – Australian Citizenship by Conferral – Person under 18
7.1 In order to uphold and maintain the integrity of the citizenship program decisionmakers must have due regard to all the circumstances of the family unit when considering individual applications made by or on behalf of a child aged 15 years and under, or where a child’s application is being considered as an individual application because their responsible parent’s application has been refused or their parent has died.
The following factors are relevant in making a decision under subsection 24(2) of the Act. Decision-makers are to consider whether the child is:
• usually resident in Australia and living with a responsible parent who is an Australian citizen and who consents to the application; or
• usually resident in Australia and living with a responsible parent who is a permanent resident and who consents to the application, and that responsible parent would meet the residence requirement but has decided not to apply for Australian citizenship because they would lose the citizenship of another country; or
• usually resident in Australia and living with a responsible parent who is not an Australian citizen and who consents to the application. If the child would suffer significant hardship or disadvantage if they were not to become an Australian citizen at this time (for example, if the child would not have access to a certain scholarship which is only available to Australian citizens), then this may be a relevant consideration for decision-makers; or
• usually resident overseas and living with a responsible parent who is an Australian citizen and who consents to the application. In this situation, it may be relevant for decision-makers to consider whether the grant of the Australian citizenship could disadvantage the child or put them in significant hardship (for example, whether by acquiring the Australian citizenship, the child would lose another citizenship which can affect their rights and access to entitlements, such as claiming an inheritance); or
• an unaccompanied humanitarian minor who falls under the Minister’s
guardianship and responsible parent or carer has consented to the application.
Applications must also be carefully considered to ensure that the child or their family unit or their relevant responsible parent, intends to reside, or to continue to reside, in Australia or to maintain a close and continuing relationship with Australia should the application be approved.”
The Minister accepts that the fourth factor in paragraph 7.1 of this CPI applies to this application.[13]
[13] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [18].
“CPI 11 - Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia
3.2. Only one arm of the requirement must be met
An applicant seeking to satisfy subsection 21(2), (3) or (4) of the Act must be likely to:
·reside or continue to reside in Australia; or
·maintain a close and continuing association with Australia if their application were to be approved.
This means the decision-maker must make a finding about the applicant’s future plans or intentions. The decision-maker may, if they consider it necessary, seek information relevant to this requirement by interview or a request for further information.
…
The words comprising the phrase ‘likely to reside or continue to reside’ should be given their ordinary meaning in the context in which they appear. The Macquarie Dictionary Online defines:
‘likely’ as probably or apparently going or destined (to do, be, etc.) – in the context of the requirements of the Act, this means it is probable rather than possible that the person will reside in Australia;
‘reside’ as to dwell permanently or for a considerable time; have one's abode for a time – in the context of the requirements of the Act, this means the person’s home in which they ordinarily live is in Australia.
…
CPI 12 - Assessing significant hardship, disadvantage or detriment for the purposes of Australian citizenship
3.2. Meaning of ‘significant hardship or disadvantage’ and ‘significant hardship or detriment’
The words ‘significant’, ‘hardship’, ‘disadvantage’ and ‘detriment’ are not defined in the Act.
The Macquarie Dictionary Online provides the following definitions:
significant important; of consequence.
hardship a condition that bears hard upon one; severe toil, trial, oppression, or need; an instance of this; something hard to bear.
disadvantage absence or deprivation of advantage; any unfavourable circumstance or condition.
injury to interest, reputation, credit, profit etc.; loss; to subject to disadvantage.
detriment loss, damage or injury; a cause of loss or damage.
Assessing significant hardship or disadvantage/detriment
The hardship or disadvantage/detriment must be significant and of consequence to the person.
Depending on the provision being considered, applicants need to demonstrate they:
·would suffer the significant hardship or disadvantage if the period of temporary residence in Australia is not treated as a period during which the person was present in Australia as a permanent resident; (for example, it may then be very difficult or impossible - and put the person to considerable hardship - for the person to take the steps to meet the permanent residency requirement ordinarily required for obtaining Australian citizenship); or
·renounce their Australian citizenship to avoid suffering significant hardship or detriment.
…
CPI 13 - Best interests of the child assessments
3.2 The phrase ‘best interests of the child’ is not defined, but is informed, in part, by the principles in the UNCRC. The factors that are most likely to be relevant to citizenship decisions are:[14]
[14] Relevant indicia only.
…
·families should be able to stay together, as far as possible;
·the rights and duties of parents and other relevant family members should be respected and it should be recognised that both parents have common responsibilities for the upbringing and development of the child;
·a child has the right to preserve his or her identity, including nationality, name and family relations as recognised by law;
…
·the views of the child should be given weight in accordance with the child’s age, maturity and level of understanding; and
·the degree of the child’s integration into the Australian community.
3.4 Weighing the best interests of the child against other matters
…
Consistent with Australia’s international human rights obligations, the ‘best interests of the child’ is a primary consideration in actions concerning children, where there is the discretion to do so. These obligations do not require that the best interests of the child be the only primary consideration, or be considered at all where there is no discretion under legislation. The best interests of the child must be weighed with or against any other primary considerations in the specific circumstances. Other primary considerations may include (but are not limited to):
·the objectives of the relevant provision/s in the Act;
·community protection; and
·community expectations.
This means that although it may be assessed that a particular decision would be in the best interests of a child, it does not automatically follow that it is the decision that should be made.”
THE ISSUES FOR CONSIDERATION

Taking the legislation and the CPIs together lead to consideration of a number of issues to determine the acceptability of this application. Those issues are:
(a)what is in the best interests of the child and is there any risk that the awarding of Australian citizenship would occasion him disadvantage or hardship;
(b)is there any intention to reside in Australia either for the family or the Applicant; and
(c)does the Applicant have a close or continuing association with Australia?
The answers to these questions will inform any decision-making process, the outcome of which still remains subject to the Minister’s ultimate discretionary decision under subsection 24(2) of the Act.
Best interests of the child / disadvantage
At present the Applicant is studying in the International Division of the Shanghai High School. Apparently, the educational services are delivered in English and the courses reflect a western-model of educational curricula. The Applicant is fluent in Mandarin. The school is a government school with both a domestic and international division.
The Applicant has submitted that there is a concern that the Chinese authorities may seek to modify the criteria in the education system so that the International Division of the school would be restricted to enrolling only non-Chinese citizens and that this would substantially disadvantage the Applicant.
It is also submitted that the Applicant is four years way from graduation and that his plans are to leave China and pursue his education in one of the “world top 10 universities”. The further assumption made by the Applicant’s mother is that these are to be found in the United States and that, due to the current state of Chinese-American relations, applicants for those universities holding citizenship of Australia rather than China would be treated in a more favourable fashion.
Finally, it is claimed that riots may happen in China and:
“Due to the hostile relationship to the western countries and being held responsible for the global pandemic, China pursues economic self-reliance which may further expedite its collapse. Should the worst happen, the applicant cannot access full Australian consulate support because of his immigration status.”[15]
[15] Applicant’s Submission (16 October 2020) at 3.
In the opinion of the Tribunal these claims vary between being mere speculation to verging on the nonsensical. There is no evidence adduced to support any of them.
Indeed, it was the oral evidence of the Applicant’s mother, in answer to the Minister’s representative that China was, in her words, “a very safe place” and there was no threat of violence. Nor had there ever been, at least as far as the Applicant and is family were concerned.
In the remote event of the Applicant being at danger from violence directed against foreigners, requiring the assistance of Australian Consular services, it might be noted that the Applicant’s mother and sister who are Australian citizens would be equally vulnerable and in any event, Australian consular services in China have found it exceptionally difficult to help Australian scholar and novelist Dr Yang Hengjun or Australian television presenter Cheng Lei from being treated in an appalling fashion by the Chinese authorities.
On the other hand, as the Minister rightly points out, if the Applicant were to become an Australian citizen (and hence forfeit his Chinese nationality) he would be dependent upon receipt of a visa to remain in China,[16] such visa being subject to arbitrary cancellation at any time, potentially severing members of the family from one another.
[16] Respondent’s SFIC at [19]-[20].
Residing in Australia
The Applicant’s mother explained to the Tribunal that she and her husband are the principals in a pharmaceutical manufacturing firm (Tianlitong) which has a significant number of employees based in Shanghai. The firm apparently specialises in the development of products such as anti-coagulants and they hold a number of patents for pharmaceutical products. She reported that it was their intention to try to establish a “branch office” in Australia and that at least she, would divide her time between Australia and China. She stated that the company would seek to gain regulatory authority to market their products in Australia, admitting that this would take some time. Finally, she stated that some of these plans would have been brought to maturity by visits to Australia which have been prevented by the current pandemic.
The travel record for the Applicant’s mother shows that she has made numerous visits to Australia starting in March 2009. However, she resided here for longer periods from February 2010 to July 2012 and from October 2012 to August 2014.[17]
[17] Ibid at Attachment C.
The family acquired a home in Sydney at Breakfast Point (Sydney) and this was her place of residence during those periods. The family still own the home and have bank accounts and investments in Australian institutions.
In the 2012-2014 period the Applicant himself was enrolled as a student at Trinity Grammar, a private Anglican school in Sydney. The Applicant was subsequently offered a place at St Augustine’s College, a private Roman Catholic school in Sydney to commence studies in July 2021 but the offer was not taken up and lapsed. The Applicant’s mother explained the choice of St Augustine’s as being on the basis that this school, unlike others, would accept enrolments from offshore and that the offer lapsed only when the Applicant (and his mother) were prevented from travelling to Sydney by the pandemic border closures.
The question of how to weigh “intentions” to reside in Australia at some future date has been considered on many occasions by the Tribunal. In Ho, the Tribunal took a very limited approach to this matter, stating:
It can not 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 Australian citizenship.[18]
[18] Ho and Minister for Immigration and Ethnic Affairs [1994] AATA 516 at [31].
This approach has been both followed in other cases,[19] and expressly disagreed with in others.[20]
[19] Supunyachotsakul and Minister for Immigration and Border Protection [2014] AATA 103; Gettings and Minister for Immigration and Border Protection [2014] AATA 357; Sie and Minister for Immigration and Border Protection [2014] AATA 60.
[20] Rasiah and Minister for Immigration and Border Protection [2015] AATA 630 at [49]; McCoy and Minister for Immigration and Border Protection [2014] AATA 771 at [41].
In McCoy the Tribunal was persuaded that, although the Applicant did not intend to relocate to Australia in the immediate term, his commitments and plans for such relocation were sufficiently robust, albeit at some time in the future, to be supportive of his application.
The primary factor weighed in the applicant’s favour in the case of See was not so much a matter of timing but rather of the educational plans which the applicant had developed.[21]
[21] See and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1327 at [64].
This Tribunal is persuaded of the logic and correctness of the decision in Rasiah where the Tribunal stated:
Intention to reside in Australia, but not until 2019. The fact that the intention is in the future does not mean the indicia cannot weigh in favour of Mrs Rasiah. The Tribunal respectfully agrees with the reasoning of Senior Member Toohey in McCoy v Minister for Immigration and Border Protection. It disagrees with the view expressed in Ho v Minister for Immigration and Border Protection and Sie v Minister for Immigration and Border Protection, that the intention must be “immediate or with some reasonable proximity”. If that were so, the phrase in the ACI’s would state “immediate or reasonably proximate intention to reside in Australia”.[22]
[22] Rasiah and Minister for Immigration and Border Protection [2015] AATA 630 at [49].
This is the view which I had previously expressed in Vasiunina.[23]
[23] Vasiunina and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 943 at [65].
However, in this instance the Tribunal is not persuaded that there is any real intention for the family to return to “reside” in Australia as distinct from spending time here to develop a business and split time between Australia and China. Similarly, all the evidence points to the real purpose of the educational activities both current (in China) and perhaps planned (in Australia) are in order to facilitate the Applicant’s entry into a university in the United States. Even taking the assurances of the Applicant’s mother at face value and assuming some degree of intent to reside in Australia there is nothing in the evidence that in any way supports the proposition that this is the intention of the Applicant himself. His sights are set (or have been set for him) elsewhere.
Close and continuing association with Australia
This is another vexed issue in assessing the status and intention of applicants.
One of the contentious issues has been the somewhat obscure and artificial distinction between having a close and continuing association with Australia against having a close and continuing association with an Australian or Australians. I explored this issue at length in Vasiunina.[24]
[24] Ibid at [27]-[50].
That problem does not arise here as there is no claim that the Applicant has any close and continuing association with any Australians other than his mother and sister who are of course residents of China.
Although the Applicant has lived for some years in Australia prior to 2014, he has only spent 13 days here in the four years prior to lodgement of his application. That does not amount to a close and continuing association on his part.
The mere owning or property of having bank accounts or investments in Australia go nowhere in meeting the test of close and continuing association, especially in these days when everything of a financial nature can be managed from almost anywhere with an internet connection. In any event those are the associations of his parents, not the Applicant.
Indicia that have been considered important in establishing a close and continuing association include “some degree of emotional commitment or attachment… requir[ing] involvement, participation, commitment or investment”[25] or a physical presence which may be taken to be “highly relevant to the nature of a person’s association with Australia.”[26]
[25] Ibid at [36].
[26] Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 at [50].
CONCLUSIONS ON CRITERIA
The Tribunal is not persuaded that the best interests of the Applicant would be served by his being granted Australian citizenship, indeed it inclines to the belief that such an outcome actually militates against them.
The Tribunal is not persuaded that the Applicant has any close and continuing association with Australia nor that he has a genuine intention to reside here.
If anything, the Tribunal is concerned that the approach being taken in this matter on behalf of the Applicant is that the acquisition of Australian citizenship is regarded as little more than a vehicle for other purposes.
It is being treated as some sort of insurance policy against changes in potential educational arrangements in China, as a hedge against political unrest in that country and a passport not to becoming a useful and contributing member of the Australian community but rather a “freshman” at some American institution.
It is the very reverse of President Kennedy’s Inaugural injunction, “[a]sk not what your country can do for you but what you can do for your country.”
The Australian Citizenship Act is unique as a legislative instrument in that it contains a Preamble which is in the following words:
The Parliament recognises that Australian citizenship represents full and formal membership of the community of the Commonwealth of Australia, and Australian citizenship is a common bond, involving reciprocal rights and obligations, uniting all Australians, while respecting their diversity.
The Parliament recognises that persons conferred Australian citizenship enjoy these rights and undertake to accept these obligations:
(a) by pledging loyalty to Australia and its people; and
(b) by sharing their democratic beliefs; and
(c) by respecting their rights and liberties; and
(d) by upholding and obeying the laws of Australia.
There is nothing in this application which suggest that the Applicant has any desire, let alone intention, to accept the premise of citizenship as a common bond or enter into the system of reciprocal rights and accompanying obligations.
DECISION
The decision under review is affirmed.

I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

....................................[sgd]....................................
Associate
Dated: 7 September 2021

Date(s) of hearing: 24 August 2021

Advocate for the Applicant: Mr X Ye, New Fountains

Solicitors for the Respondent: Mr M Sheedy, Sparke Helmore

Date(s) of hearing:	24 August 2021
Advocate for the Applicant:	Mr X Ye, New Fountains
Solicitors for the Respondent:	Mr M Sheedy, Sparke Helmore