Zhuhui LI and Minister for Immigration and Border Protection
[2015] AATA 270
•29 April 2015
[2015] AATA 270
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1303
Re
Zhuhui LI
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member P W Taylor SC
Date 29 April 2015 Place Sydney The decision under review is affirmed.
............................[sgd]............................................
Senior Member P W Taylor SC
CATCHWORDS
CITIZENSHIP - Citizenship application – Applicant did not meet residence requirement – Close and continuing association with Australia - Prior decision set aside and remitted to Minister for redetermination – role of policy in decision of Tribunal – decision affirmed.
LEGISLATION
Australian Citizenship Act 1948 (Cth): s 13(9)
Australian Citizenship Act 2007 (Cth): ss 21(2)(g), 22(1)(a), 22(1)(c), 22(9), 24(5)
Migration Regulations 1994: Sch 2 cl 155
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115
Re Jiang and Minister for Immigration and Citizenship [2011] AATA 688
Re Kim and Minister for immigration and Citizenship [2015] AATA 67
Paula and Minister for Immigration and Citizenship (2012) 130 ALD 663
Re PMYL and Minister for Immigration and Border Protection [2014] AATA 148
Re Sabumei and Minister for immigration and Border Protection [2014] AATA 648
Sie and Minister for Immigration and Border Protection [2014] AATA 60
Re Taher and Minister for Immigration and Border Protection [2013] AATA 917
Re Tan and Minister for Immigration and Citizenship (2011) 124 ALD 398
Re Ul Haque and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 118
Re Wolstenholme and Minister for Immigration and Citizenship [2010] AATA 315
Re XQMD and Minister for Immigration and Border Protection [2014] AATA 633SECONDARY MATERIALS
Australian Citizenship Instructions
REASONS FOR DECISION
Senior Member P W Taylor SC
29 April 2015
Mr Li is a 65 year old Canadian citizen, and a highly qualified clinical psychologist. Since about 1990, he has lived, studied and worked in Ontario - for a large part of that period in the role of clinical director of a community services organisation.
In April 1998, after he had completed his Masters Degree but before undertaking his PhD studies at the University of Toronto, Mr Li obtained an Australian skilled migrant visa: Class AJ (Skilled – Australian Linked (Migrant), subclass 105 (Skilled – Australian Linked). In February 2003 Mr Li’s migrant visa was replaced by a Class BB (Return (Residence)) visa, subclass 155 (Five Year Resident Return). Mr Li has continued to hold such a visa. He received his current visa in March 2014.
A subclass 155 (Five Year Resident Return) visa is not always effective for the five year period its formal name suggests. The actual visa period depends on the person’s eligibility qualification. Where the person was not in Australia when they made their application, their qualification may depend on Ministerial satisfaction that the person had “substantial business, cultural, employment or personal ties with Australia which are of benefit to Australia”: see Migration Regulations 1994 Schedule 2 clause 155.212(4). In such a case, since 2013, the effective visa period is only 12 months: see Migration Regulations 1994 Schedule 2 clause 155.212(4). The visa Mr Li obtained in March 2013, when he was living in Ontario, was only effective for 12 months. His current visa, granted in March 2014, is similarly limited.
MR LI’S REJECTED CITIZENSHIP APPLICATION
Mr Li applied for Australian citizenship on 28 February 2014. A ministerial delegate decided that Mr Li had not been an Australian permanent resident for the whole 12 month period before 28 February 2014. The delegate regarded this requirement as mandatory – because of the combined effect of Australian Citizenship Act 2007 (“ACA 2007”) ss 5(1), 21(4)(d) & 22(1)(c). The delegate refused Mr Li’s application on that ground alone, and did not address any other aspect of his application.
In September 2014, I determined that Mr Li had been a “permanent resident” for the 12 months preceding his application. I set aside the original decision and remitted the matter to the Minister to determine the other aspects of Mr Li’s citizenship application.
The September 2014 remittal resulted in the 21 October 2014 decision under review. That decision again refused Mr Li’s application – on the basis that:
(a)he did not satisfy the ordinary “general residence requirement” in ACA 2007 s 22(1)
(b)he did not have “a close and continuing association with Australia” - so as to allow him to be treated as satisfying the “general residence requirement : see ACA 2007 s 22(9)
(c)he was not likely either to maintain “a close and continuing association with Australia” or reside in Australia - as required by ACA 2007 s 21(4)(e).
MR LI’S ABSENCE FROM AUSTRALIA
Mr Li first came to Australia in 1998 but, because of his full time Canadian employment, his periods of Australian presence, particularly since 2010, are very limited. That fact is readily apparent from the following Table, which summarises his recorded Australian arrival and departure dates.
Australian presence
Arrival Departure No of Days 21-Jul-98 3-Aug-98 14 8-Jul-04 19-Jul-04 12 18-Sep-09 24-Oct-09 37 17-Sep-10 17-Oct-10 31 8-Apr-12 6-May-12 29 20-Nov-12 2-Dec-12 13 7-Sep-13 21-Sep-13 15 19-Feb-15 Overview 28-Feb-10 28-Feb-14 88 21-Jul-98 19-Feb-15 151
As the Table reveals, until Mr Li’s presence at the review hearing in late February 2015, his most recent visit to Australia was for about two weeks in September 2013. In the four years preceding his February 2014 citizenship application he had only spent 88 days in Australia. In the 16 years since his first arrival in Australia he had only spent 151 days (approximately five months) in Australia.
Mr Li’s long period of overseas residence precludes him from satisfying the (typically 3 to 4 years lawful presence) “general residence requirement” in ACA 2007 ss 21(4)(d) & 22(1)-(1B). But because Mr Li is both married to an Australian citizen and was, at all relevant times, a permanent resident, there is a discretion to treat periods of his overseas residence as periods of Australian presence. That discretion is, relevantly, conditional on satisfaction that he “had a close and continuing association with Australia” during the same period: see ACA 2007 s 22(9).
MR LI’S INCIDENTAL OBJECTIONS
Mr Li objects to the delegate’s 21 October 2014 decision on three main grounds. First Mr Li contends that the delegate should only have dealt with the remitted application by reconsidering his earlier decision, rather than re-evaluating Mr Li’s 28 February 2014 application. The essence of this argument is that a delegate who deals with an application remitted by a Tribunal order can only review the grounds of their earlier decision, and cannot raise matters additional to, or different from, the grounds of their first decision. This contention is unsound. The September 2014 remittal decision was intended to require the minister’s delegate to address the totality of Mr Li’s application, subject only to the Tribunal’s finding that he did in fact satisfy the permanent residence requirement. There was no other direction, even assuming one could properly have been made, limiting the nature of the further decision the ministerial delegate was required to make in determining Mr Li’s application. In any event, the Tribunal’s role in exercising the review jurisdiction conferred by ACA 2007 s 52 is (relevant to Mr Li’s circumstances) to exercise all the relevant powers of the decision maker. In carrying out that role, subject to the requirements of natural justice and fairness, the review proceedings cannot be circumscribed by the scope of the matters that influenced the delegate’s decision.
A second matter relied on by Mr Li involved alternative propositions. The first proposition was that if he established he had a “close and continuing association with Australia” (sufficient to warrant the exercise of the discretion referred to in paragraph 9 above) then it was inevitable the Tribunal would also be satisfied he was likely to maintain that association. Consequently, his citizenship eligibility did not depend on his ability to demonstrate that he was “likely to reside … in Australia”: see ACA 2007 s 21(2)(g). The alternative proposition was that Mr Li was, in fact, likely to reside in Australia. That likelihood was demonstrated by the pending finalisation of his employment in Canada, and the fact of his return to Australia. In my view, the first of these propositions is correct, and has the consequence for which Mr Li contended. That consequence is consistent with the disjunctive wording in ACA 2007 s 21(2)(g).
MR LI’S PRINCIPAL OBJECTION
Mr Li’s third contention is the real point of controversy in the review proceedings. Mr Li has been married for almost 38 years. His wife became an Australian citizen on 30 September 2010. Mr Li contends that the minister’s delegate should have exercised the statutory discretion referred to in paragraph 9 above. If that discretion was exercised in his favour, then Mr Li would, as a result of the combined operation of ACA 2007 ss 22(1) & 22(9), satisfy all the relevant citizenship eligibility requirements, and his application should be granted.
THE “CLOSE AND CONTINUING ASSOCIATION” DISCRETION
The Australian Citizenship Instructions (“ACI”) are part of a system of departmental instructions that provide a policy exegesis intended to inform the interpretation of the 2007 Act, and guide the proper exercise of the various powers it confers. ACI Chapter 5 deals generally with the topic of “citizenship by conferral” (in contrast to citizenship entitlements that may arise from birth, adoption or descent). ACI sections 5.7.2 and 5.18 deal with the concept of “close and continuing association with Australia”. ACI section 5.18 specifically addresses that concept in the context of the discretion conferred by s ACA 2007 s 22(9).
An extract of the relevant content of ACI section 5.18 is set out below. The inclusively listed factors substantially duplicate the those set out in ACI section 5.7.2, but section 5.18 adds two factors as relevant considerations. In the extract I set out below I have preceded those added factors with the █ symbol. I have also (i) used the ► symbol to identify the factors the delegate treated Mr Li as having at least partly satisfied and (ii) shaded all the factors Mr Li claims to be able to satisfy.
… 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
·where 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 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 s22(9)(d), it is policy that more weight should be given to the above factors if the person has been lawfully and physically present in Australia for at least 365 days in the 4 years immediately before making an application for Australian citizenship (including at least 90 days as a permanent resident). Less weight should be given to these factors if they have not been present in Australian for at least this period.
As the Table entries preceded by the ► symbol indicate, the ministerial delegate regarded Mr Li as satisfying few of the factors listed in ACI s 5.18. The delegate did find that Mr Li had a close and continuing association with his Australian spouse and family. This finding necessarily involved acceptance of information that Mr Li’s mother, sister, brothers, and their family members were all Australian residents and most of them were Australian citizens. But it also alluded to a distinction between “Australia” and “Australians” and then qualified the finding by referring to Mr Li’s “minimal presence in Australia in the relevant four year period”. In obvious regard to the ACI policy requiring “less weight” to be given to factors indicating a relevant association where the person had a limited period of actual Australian residence, the delegate referred to “the discretionary benchmark of 365 days” and concluded that “ultimately, you simply have not spent enough time in Australia … to justify the use of the Ministerial discretion”.
The delegate’s reference to the ACI policy content as a “discretionary benchmark” might convey that he interpreted it as imposing a threshold pre-condition to the exercise of the discretion. Such an application of the policy would not be entirely correct. The correct role of policy, in the application of a generally expressed statutory discretion, was summarised in the joint judgment of the Full Court of the Federal Court in Hneidi v Minister for Immigration and Citizenship (2010) 182 FCR 115; 265 ALR 292; 114 ALD 26; [2010] FCAFC 20. There the Full Court summarised four propositions established by the “seminal authority”; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In Hneidi at [41] to [44] the Full Court said:
[41] … The first is that the decision-maker is entitled, in the absence of specifically defined criteria for the exercise of the discretion, to take into account "government policy". Thus, where the Tribunal is not under a statutory duty to regard itself as bound by the policy, it is entitled to treat the policy as a relevant consideration.
[42] Second, in the absence of a specific statutory provision (which would no doubt be unusual) the Tribunal is not entitled to abdicate its function of determining whether the decision under review was, on the material before the Tribunal, the correct or preferable one, to a more passive function of determining whether the decision conformed to the relevant policy.
[43] Third, it is not desirable to frame a general statement of the part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal to determine in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions but balanced against the ideal of justice in the individual case.
[44] Fourth, the borderline between cases in which the Tribunal has abdicated its functions to those of an unthinking application of "government or Ministerial policy" to the facts may sometimes be blurred. But where the Tribunal considers that the correct or preferable decision results from the application of such a policy, it should make it clear that:
"… it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion."
A more succinct summary of the correct approach to the use of policy in the exercise of a statutory discretion is contained in the reasons of DP Handley in Re Wolstenholme and Minister for Immigration and Citizenship [2010] AATA 315. There, in specific reference to the ACI policy in the application of ACA 2007 s 22(9), DP Handley said (at [43]):
… the Tribunal, while having regard to relevant policy and the desirability of consistency in administrative decision-making, must not abdicate its function of determining whether the decision under review was, on the material before it, the correct or preferable one having regard to the justice of the outcome in the individual case.
Despite the delegate’s reference to the ACI policy as setting a “discretionary benchmark” period of Australian presence, later parts of the delegate’s reasons suggest that the delegate finally proceeded on the dual basis that Mr Li had neither (i) demonstrated the required “close association” nor (ii) spent enough time in Australia to warrant the exercise of the ministerial discretion. This duality suggests a degree of ambivalence, and a view that even if Mr Li’s family connections sufficed to be characterised as a close association with Australia, his own limited periods of past presence and vaguely expressed aspirations for future Australian presence, did not provide a sufficient basis for exercising the ACA 2007 s 22(9) discretion.
The significance of the delegate’s views about Mr Li’s likely future residence become more apparent in the delegate’s express finding that Mr Li would not reside in Australia. The delegate made that finding in the context of determining that Mr Li could not even satisfy the additional alternative qualification requirements in ACA 2007 s 21(4)(e). In view of his earlier finding that Mr Li did not satisfy the “general residence” requirement in ACA 2007 s 21(4)(d), it was not necessary for the delegate to address ACA 2007 s 21(4)(e). But both the fact, and the manner in which, the delegate did so is informative in identifying factual matters relevant to an assessment of Mr Li’s association with Australia.
ASSOCIATION WITH AUSTRALIANS OR AUSTRALIA
The delegate found that Mr Li would not reside in Australia partly because of his limited past residence. The delegate also considered that Mr Li had provided no substantial evidence of ending his Canadian employment and moving to Australia. Having made that finding the delegate went on to repeat his acceptance that Mr Li had a close and continuing association with his Australian spouse and family, but added the following reservation:
However, you have provided no other evidence which gave you a direct or personal close and continuing association with Australia (rather than Australians) during your extended absences that would allow you to continue your association with Australia in the future. I find that your evidence is insufficient when it is taken into consideration with your absences from Australia over the relevant four-year period and throughout your entire permanent residency. You have provided no evidence over and above your Australian citizen family to show that you will maintain a close and continuing association with Australia while you permanently reside in Canada .
In that finding the delegate provided the emphasis on the words “Australia” and “Australians”. Mr Li responded to this reasoning by disputing the justification for a distinction between “Australia” and “Australians” in assessing the “close and continuing association” criterion. In an impressive part of his 27 January 2015 submissions (at paragraph 3) Mr Li said:
The Respondent seemed to have intentionally separated association with Australians from association with Australia, which has violated the Act and (is) without merits. In fact, all the factors listed (not limited to) in the instructions of the Act are viewed as close association with Australia and not “just” with Australians. There is actually no specific category or legislature to distinguish what factors are the association with Australia and what factors are the association with Australians throughout the Act and its Instructions .
Reference back to the qualification criterion in ACA 2007 ss 21(4)(e) & 22(9)(d) - “a close and continuing association with Australia” - shows that Mr Li is incorrect in asserting that the delegate’s distinction between “Australia” and “Australians” is contrary to ACA 2007. But there are two forceful parts of Mr Li’s submission. The first is that, despite the fact that the “general residence requirement” ordinarily requires Australian presence, the Act does confer a general ministerial discretion to treat any period of a spouse’s overseas absence as one of Australian residence. No period of actual Australian presence is expressed as a necessary pre-condition to the exercise of the discretion.
Secondly as Mr Li also pointed out, the specific ACI criteria identified in s 5.18 as permissibly influencing the exercise of the ACA 2007 s 22(9)(d) discretion, include few matters (it may be literally more accurate to say no matters) that necessarily contemplate an applicant’s Australian presence within the typical three to four year period involved in the “general residence requirement”. Four of the criteria contemplate personal connection with individual Australians, but only two of those necessarily involve individuals actually resident in Australia. The evident diversity of the permissibly relevant considerations is inconsistent with an arbitrary distinction between “Australia” and “Australians” and does not require a connection to be dismissed as irrelevant or immaterial because it was “just” with “Australians”.
The postulated distinction between association with Australia and association with Australians has been the subject of many observations. In Re Ul Haque and Minister for Immigration, Multicultural Affairs and Citizenship [2013] AATA 118 the citizenship applicant was a Bangladeshi national whose wife and daughter had migrated to Australia a decade earlier. He had extensive business interests in Bangladesh, Germany and Singapore and considerably lesser, but not insignificant, Australian assets. He had spent very little time in Australia and had no intention to do so in the foreseeable future. In refusing his citizenship application Senior Member Britton said
50. While physical presence is not determinative, it is nonetheless highly relevant to the nature of a person’s association with Australia. The little time Mr Ul Haque has been present in Australia since being granted permanent residency and throughout the relevant period is reflected in the modest amount of personal income tax paid, and the lack of any significant social or community ties, to Australia.
…
52. Mr Ul Haque has a close and continuing relationship with his wife and daughter, both of whom, as Australian citizens, have a close and continuing relationship with Australia. But, although there may be some overlap, having a close and continuing relationship with his family is not the same thing as having a close and continuing relationship with Australia. He spends little time here and does little work or business here. He makes very little contribution to Australian society. Apart from his family, he has very few personal connections with Australia. Weighing these considerations discussed above I am not satisfied that Mr Ul Haque’s association with Australia could be described as close and continuing.
In Re Sabumei and Minister for immigration and Border Protection [2014] AATA 648 the citizenship applicant was an airline pilot who lived in Dubai with his Australian wife and two children. He had an extended family in Australia (father in law, cousin, two aunts, ex-sister-in-law, niece and nephew). He had also maintained his Australian pilot licence and medical certification. In the 4 years preceding his application his longest continuous period of Australian presence was only 10 days, and his total period was only 173 days. However he had previously lived in Western Australia, in a rented property, for over two years. Within the four year period he had also purchased property in Queensland near his wife’s family. His intention was to build the family home there after he returned to Australia.
In refusing the application Senior Member Walsh highlighted the fact that the permanent residency and association requirement in ACA 2007 s 22(9) appeared to narrow the very general citizenship discretion that had previously applied to spouses under s 13(9) of the Australian Citizenship Act 1948 (Cth). (That appearance may be somewhat misleading, in view of the content of the ACI provisions that applied to the 1948 Act - see Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20.) In refusing the application SM Walsh recognised that the applicant satisfied many of the permissibly relevant criteria identified in ACI section 5.18. He also recognised the potential relevance of family ties in Australia. But SM Walsh said in Sabumei at [25], that family ties were only one of the factors to be taken into account:
The phrase “close and continuing association with Australia”, as it appears in s 22(9)(d) of the Citizenship Act, has been considered in a number of recent Tribunal decisions, including Sie and Minister for Immigration and Border Protection [2014] AATA 60 (Sie) at [37], Herrman and Minister for Immigration and Border Protection [2014] AATA 105 at [33], Ul Haque and Minister for Immigration and Citizenship [2013] AATA 118 at [52], Taher at [47] and [48] and Jiang and Minister for Immigration and Citizenship [2011] AATA 688 at [25]. These decisions have consistently found that whilst an applicant for Australian 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. This is self-evident from the words in the subsection, namely that a person must have had a “close and continuing association with Australia” in the relevant period. 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 relationship with Australia” in the four years immediately before his or her citizenship application for the purposes of s 22(9)(d) of the Citizenship Act.
SM Walsh continued on to emphasise that exercise of the ACA 2007 s 22(9) discretion required more than satisfaction that an applicant had some evidence of a relevant kind of association. What was required was a qualitative assessment of the ultimate significance 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.
In Re PMYL and Minister for Immigration and Border Protection [2014] AATA 148 Senior Member Britton took a similar approach to the meaning of the expression “close and continuing association”. SM Britton said
[10]Whether the applicant had “a close and continuing association“ throughout the relevant period is a question of fact to be objectively assessed having regard to all relevant factors including those listed in the Instructions. The forming of an opinion about whether a person has demonstrated the requisite association is not a simple mechanical exercise to be undertaken by merely tallying the relevant factors. The indicia of association listed in the Instructions have no hierarchy or weighting. The weight to ascribe to each and whether one or more should be given greater weight than others is a matter for the decision-maker. The decision-maker must also consider whether other indicia of association might be relevant in the circumstances of the particular case.
[11]The phrase “close and continuing association“ is not defined in the Act. The words in that phrase are ordinary English words and should be given their ordinary meaning in the context in which they appear. The Australian Oxford Dictionary defines “close“ as “having a strong or immediate relation or connection“, “continuing“ as meaning “to remain in existence or unchanged“ and association as “the act or an instance of associating; fellowship or companionship“. The Macquarie Dictionary offers similar definitions, defining “close“ as “near, or near together, in space, time, or relation“, “continuing“ as “to last or endure“ and “association“ as “the act of associating … connection or combination”.
The Tribunal’s decision in Sie and Minister for Immigration and Border Protection [2014] AATA 60 involved a Chinese national who had a brother, sister and friends living in Australia and owned three residential properties in Melbourne. He lived in Hong Kong, with his Australian citizen wife and two young daughters, and had been in Australia for only 102 days in the four years preceding his application. He aspired to migrate to Australia with his parents, but they had no prospect of being able to do so for many years. In dismissing Mr Sie’s application, after referring to the fact that his family and commercial activities had been almost exclusively in Hong Kong, the Tribunal said:
35. Nothing points to the applicant having made any level of contribution to Australia, whether it be economic, social, academic, recreational, humanitarian, community, charitable or philanthropic. Although he regularly returned to Australia in 2009 and 2010, he remained here for very short periods. He did not return at all in 2011. His visits became more regular again in late 2012/early 2013 with a duration of five to ten days. The applicant remained in Australia for an aggregate of 53 days in 2010 when his wife and eldest daughter lived here. Except for 2010, I am satisfied that he has not resided here after 2009 as opposed to being a visitor.
In ReTaher and Minister for Immigration and Border Protection [2013] AATA 917, Mr Taher was an Eritrean citizen who had been granted permanent residence status in 2003, but who had continued to work in Saudi Arabia because of the preferable job opportunities available to him there. In the meantime his wife and four children had remained in Australia, living in rented accommodation provided by the applicant’s sister.
In rejecting the application the Tribunal noted that Mr Taher had spent only 168 days in Australia in the four years preceding his application, and only 40 days in the immediately preceding 12 months. The Tribunal said (at paragraph [14]) that significant periods of Australian presence were important in the exercise of the ACA 2007 s 22(9) discretion, and (at paragraphs [35] and [36]) that the discretion was not intended to be available simply on the basis that an applicant could show a relationship of close and continuing association with Australia.
It is clear from a full reading of the Tribunal’s decision in Taher that considerable emphasis was placed on the fact that Mr Taher lived alone overseas, and that his absence from Australia was not for the purpose of accompanying his citizen spouse. A circumstance of the latter kind is obviously relevant to the exercise of the discretion, and is explicitly recognised in the ACI section 5.18 criteria. But such a relevant consideration, which may be given particular weight in assessing the circumstances of a particular applicant, ought not be interpreted as a pre-condition to the exercise of the discretion. As Senior Member Isenberg said in Re XQMD and Minister for Immigration and Border Protection [2014] AATA 633, (at [34]):
… the limitation in Taher should not be applied to preclude the exercise of the discretion absolutely, if a person is absent from Australia due to reasons that are not directly related to that person’s spouse. … s 22(9) provides only the context in which the consideration of the discretion is enlivened; it is not limited to circumstances where an applicant for citizenship is precluded from being in Australia for the relevant period because of the commitments of their spouse. While that may be a very strong factor in favour of the exercise of the discretion, the inclusion of other considerations in the ACIs militate against the limited interpretation applied in Taher.
In Re Jiang and Minister for Immigration and Citizenship [2011] AATA 688 the citizenship applicant was a Chinese national whose wife and daughter had migrated to Australia in 1998. His wife had been granted Australian citizenship in 2005. Mr Jiang owned and operated various corporate businesses in China and had remained living there because of his involvement with them. He claimed to intend to settle in Australian and was a member of the Australian Chinese Business Association. He held a joint Australian bank account and had purchased his wife’s Australian residence (albeit in her name). However he had spent only 76 days in Australian in the 4 years preceding his application, and only 18 days in the immediately preceding 12 months. In refusing his application the Tribunal canvased the approach that had been taken in a number of other cases.
25. In Minhas and Minister for Immigration and Citizenship [2011] AATA 388, the Tribunal found that Mr Minhas’ close ties with his family, his close and continuing association with them, did not establish a close and continuing association with Australia. Mr Minhas had not resided in Australia during the relevant period, nor worked or studied here. I consider Mr Jiang’s circumstances are analogous to those of Mr Minhas. Like Mr Minhas, he is a visitor to Australia.
26. In cases where the Tribunal has exercised the discretion in section 22(9) in favour of an applicant, additional aspects of association with Australia have been present, including:
• property ownership; studies at an Australian University; membership of professional associations; multiple applications for employment (Tanko v Minister for Immigration and Citizenship [2011] AATA 122); or
• ownership of, and work on, a farm; substantially more time spent in Australia in the relevant period; AusAID supported humanitarian work in family-unfriendly locations as the reason for absence from Australia (Wolstenholme v Minister for Immigration and Citizenship 115 ALD 219); or
• a senior position in an Australian export company; ownership of residential and investment property in Australia; payment of taxes in Australia; close friendships with Australians; and substantially more time spent in Australia in the relevant period (Sopronov v Minister for Immigration and Citizenship [2011] AATA 126)
The citizenship applicant in Re Tan and Minister for Immigration and Citizenship (2011) 124 ALD 398; [2011] AATA 877, was a 45 year old Philippines citizen. She was married to an Australian citizen who was a senior executive working in Manila. They lived there with their two children, aged 12 and 15. Mrs Tan had a brother, sister and extended family in Australia, as well as her husband’s family. She said she proposed to move to Australia in about three years’ time, so their eldest son could complete his final year’s schooling and move on to attend an Australian University. Since her 1995 marriage Mrs Tan had visited Australia on many occasions, but typically only for short stays. Between 2003 and 2010 she had visited only four times, and had stayed for only about a month on each visit. In rejecting the application the Tribunal said:
[28] To date, Ms Tan has only ever been a visitor in Australia and has spent relatively little time here. In my view, despite the presence of some other indicators of a close and continuing association, in particular, the fact of her husband and children being Australian citizens, this is not of itself sufficient to satisfy me of a close and continuing association with Australia. …
In Re Kim and Minister for immigration and Citizenship [2015] AATA 67 the citizenship applicant was a Korean national who was the chief executive officer of a substantial Korean company. Her family (her husband and two children) had migrated to Australia in 2005, but in the subsequent five years before lodging her application she had continued to live and work in Korea. She made regular trips to Australia, but only for short stays - typically ranging from two to six days. In the four years preceding her application Mrs Kim had spent only 105 days (ie just over three months) in Australia. In rejecting Mrs Kim’s application the Tribunal said:
[31] Physical presence in Australia is undoubtedly an important element in the development of a close and continuing association with Australia. I regard Ms Kim’s limited physical presence in Australia in the four years prior to her application for citizenship as being of particular relevance. When considered in light of her very limited involvement in the Australian community, this outweighs any connection which she does have with Australia.
In Paula and Minister for Immigration and Citizenship(2012) 130 ALD 663; [2012] AATA 543 the applicant was a Brazilian national who, six years after arriving in Australia, and three years after marrying her Australian citizen husband, returned unaccompanied to Brazil and completed her university degree. Because of her studies in Brazil, Ms Paula had spent little time (only 253 days) in Australia in the four years preceding her application. Nevertheless, the combination of the applicant’s close relationship with, financial dependence on and commitment to her husband, and her commitment to the goal of practising law in Australia with a qualification from an Australian university, satisfied the Tribunal that the ACA 2007 s 22(9) discretion should be exercised in her favour. In relation to what the delegate in the present case described as the “benchmark” residence requirement in ACI section 5.18 Senior Member Bell said:
[31]The instructions do not raise a failure to be present for 365 in the relevant 4 years as a bar to a conclusion that a person had a close and continuing association with Australia or to the exercise of the discretion generally. The use of the expressions “more weight” and “less weight” suggest a sliding scale of weight to be attached to a claim for exercise of the discretion, depending on how many days a person has been present in Australia in the relevant period.
It is apparent from earlier passages in SM Bell’s reasoning in Paula - specifically paragraph [28] - that the reference to a sliding scale to be applied “depending on how many days a person has been in Australia in the relevant period” was not intended to suggest that some Australian presence in the four years before a citizenship application was a pre-condition to the favourable exercise of the discretion. In that regard it is also relevant to point out that the first of the criteria now included in ACI section 5.18 (the reference to prior migration to Australia) was inserted in about November 2013, and after the general “more weight” statement in the last paragraph of section 5.18. The significance of this observation is that if an applicant satisfied the Tribunal that they had previously migrated to Australia, and established their home in Australia, then it would likely be inappropriate to confine an assessment of their association with Australia by merely applying a “sliding scale” that had regard only to periods of Australian presence that occurred in the four years immediately preceding their application.
Accordingly, the contrasting requirements in ACI section 5.18 to give “more” or “less” weight according to the whether or not applicant has satisfied the 365 day residence period stated in the last paragraph of section 5.18, neither state nor imply that such a period of recent residence is a necessary pre-condition to achieving the relevant satisfaction. The apparently intentional imprecision of the comparison indicates that in some situations a decision maker may properly be satisfied of an applicant’s “close and continuing association with Australia” despite quite a long period of recent residential absence. Achieving that satisfaction in any particular applicant’s circumstances, where various factors may vary in their apparent significance, can be very much a matter of impression, and difficult to express with clear or persuasive conviction.
MR LI’ S CIRCUMSTANCES
By 1998 Mr Li’s younger brother, with his wife and children, had been living in Australia for many years. It is likely that when Mr Li obtained his skilled migrant visa in April 1998 he had made a decision that he would migrate to Australia. It is consistent with that possibility that his mother, who had lived with him in Canada for about a year, did then migrate, and subsequently became an Australian citizen. But it is reasonably apparent that Mr Li’s first visit to Australia, a two week stay in July 1998, was not actually in fulfilment of any migration decision. It seems that Mr Li perceived his educational and employment prospects were greater in Canada and, after a short visit of only a fortnight, he did not return to Australia until July 2004. Even then it was only for another, similarly brief, sojourn. It was another 5 years before he returned, and made the first of an irregular series of five trips to Australia between September 2009 and September 2013.
The increased frequency of Mr Li’s visits to Australia occurred after his wife came to Australia in 2007. In 2008 Mr and Mrs Li’s son, who is not an Australian citizen, came to Australia and started an undergraduate architecture course at Sydney University. In 2009, during Mr Li’s third visit to Australia, Mr and Mrs Li bought an apartment at Penshurst, NSW. Mrs Li lived there, with their son, until she returned to Canada in late 2010 or early 2011.
Mrs Li said her return to Australia in 2007 was partly motivated by the need to care for, or assist in caring for, Mr Li’s elderly mother. But it also reflected her desire to live in Australia. It is consistent with that view that Mr Li gave evidence of information he obtained, in about 2008, of the difficulties he would face in having his qualifications fully recognised in Australia. He was told that he would have to undertake two years of supervised practice. The fact of Mr Li having made those enquiries, against the background of his wife’s return to Australia, and the 2009 purchase of the Penshurst apartment, indicates a renewed interest in moving to Australia, and steps to carry out that intention. But I accept that the limitation on the portability of his professional skills would, for a man of Mr Li’s academic qualifications, experience and age, be a considerable disincentive in actually embarking upon a move to Australia. In any event, despite the difficulties Mr Li faced, his wife continued to live in Australia until late 2010 and, as a result of her period of Australian residence, she obtained her Australian citizenship on 30 September 2010.
When Mrs Li returned to Canada in late 2010, their son continued to live in the Penshurst apartment. He stayed there until after the conferral of his degree, in April 2012, and his subsequent return to Canada to undertake a postgraduate course. From then until early 2015, Mr and Mrs Li allowed relatives to live in the apartment. The relatives were not required to pay any rent. Mr and Mrs Li paid the various rate and strata levy expenses. They have maintained a joint Australian bank account.
Mr Li said that in about January 2015 he had given the relatives notice that he and his wife intended to return permanently to Australia. The relatives vacated the apartment shortly before Mr and Mrs Li came to Australia in February 2015.
In relation to that most recent return to Australia, in his 27 April 2014 submission Mr Li had foreshadowed retirement from his Canadian employment and stated his intention to return and settle in Australia at some time in the coming year. In his 27 January 2015 submission Mr Li repeated that information. He said that he had been looking for a suitable job in Australia and, to support that claim, he provided confirmation of recent contact with an Australian employment agency.
Mr Li’s evidence of retiring from his Canadian employment, and returning permanently to Australia, was in some respects surprisingly belated. It was not until his 22 February 2015 written submission (a submission dated the day before the review hearing) that he claimed he had returned permanently to Australia. Even at the hearing Mr Li’s precise employment status was not particularly clear. He said that he had decided to retire some months earlier and, to that end, he had begun to transfer his longstanding clients to other practitioners. He saw his last regular patient before Christmas 2014 and had given notice of his intention, or request, to retire. But although he had worked for his community services employer for many years, and held a senior position, no farewell celebration had occurred. Mr Li said his employer had not formally accepted or implemented his retirement, and he had continued to attend his office in Ontario right up until just before he left to come to Australia.
The precise status of Mr Li’s employment in Canada, and the reality of his asserted permanent move to Australia in February 2015, is further obscured by a number of other considerations. He travelled to Australia on a round trip ticket. He has not taken any steps to sell the Canadian apartment he and his wife purchased in about 2009, or their Canadian car and household property. His asserted intention to retire could regarded as more related to the formal procedure required to entitle him to benefits under a Canadian pension plan scheme, than to an actual cessation of his Canadian employment.
However Mr Li said that his round trip airline ticket was only marginally more expensive than a one way ticket and, seeing that it could be used at any time up until August 2015, he thought it was a sensible precaution to buy a roundtrip ticket, against the contingency that he might have to travel back to Canada for some reason. But the fact was that he had no intention to return permanently or indefinitely to Canada. He said that his son was living in their Canadian apartment, and would do so until he completed his further studies - some time in 2017. Mr Li said he expected his son would then move to Australia. As for his own intentions, Mr Li said that he had long wanted to come to Australia, and intended to remain. He explained that he wanted to live in Australia because his mother, sister and brothers all lived here. In Canada there was only himself, his wife and their son.
Despite the belated, and somewhat imprecise, evidence of Mr Li’s retirement from his Canadian employment, I accept that he has decided to move to Australia, and that he has at least begun to implement that decision. He has consistently said that he wants to retire, and to return to Australia. He is now just past a conventional retirement age and he has at least begun the process of retirement.
In addition Mr Li does have an extended family in Australia. I have already referred to his elderly mother’s migration in 1998. His younger brother has lived in Australia for almost 30 years. He has a wife and two adult children. Mr Li’s younger sister migrated to Australia from China in about 2000. She is married and has one adult daughter. Both Mr Li’s younger brother, and his sister, are Australian citizens.
Mr Li’s older brother has been in Australia since 2008. He is married and has an adult son, who studied in Canada, and had contact with Mr Li there.
Mr Li conceded that he had no Australian citizen children, has never had any relevant Australian employment, and could not point to payment of Australian tax. Nevertheless he sought to support his application by emphasising that he had provided evidence satisfactorily addressing the other 8 of the 11 factors listed in ACI s 5.18 (and set out in paragraph 14 above). That emphasis is, in my view, an overstatement and an over simplification. I will explain why.
Australian property, migration and intended residence:
Mr Li does own a residential apartment in Australia, and probably purchased it in 2009 with the intention that it would eventually be his home. Mr Li also does now have a definite, and immediate, intention to reside permanently in Australia. But that intention has crystallised only in more recent months. I am not satisfied it existed, in anything other than a general and indefinite sense, at the time of his February 2014 application. That is the most relevant time to consider - in the light of the fact that the ACA 2007 s 22(9) discretion is to treat a period as satisfying the “general residence requirement”, and that requirement relates to the 4 year period “immediately before the day the person made the application”: see ACA 2007 s 22(1)(a).
Moreover, although Mr Li characterises his visits to Australia between 2009 and 2013 as regular returns and periods of residence, they were in reality episodic, comparatively infrequent (ie approximately only annual) and short. His three longest visits were only for about a month, and occurred when either his wife or his son was living in Sydney. His last two visits, in late 2012 and September 2013 were for a fortnight or less.
Family and spouse:
Mr Li has been married for a long time, and his wife is an Australian citizen. But Mrs Li has only spent a small fraction of their married live in Australia. She only became a citizen in September 2010 and shortly afterwards returned to live with Mr Li in Canada. It follows that Mrs Li became a citizen within the four year period before Mr Li’s application, and in that time both she and Mr Li have spent little time living in Australia.
Mr Li does have an extended family, and the Minister conceded that Mr Li had a relevantly close association with them. But it is necessary to address something of the nature and extent of that association before making an assessment of the weight it should properly be accorded in relation to Mr Li’s claim that he satisfies the ACA 2007 s 22(9) criterion of “close and continuing association with Australia”.
Mr Li’s mother is elderly. He gave no evidence detailing the extent of his contact with her. I am prepared to assume that he is at least a dutiful son and has a correspondingly respectful, affectionate and regular communication with her. But there is nothing to show that it is more regular or substantial than his contact with his siblings. Mr Li has three siblings, all of whom live in Australia. The longest Australian resident of the three is Mr Li’s younger brother. Mr Li said his younger brother had never visited him in Canada, and he had in the past had comparatively less contact with him than with his sister. Mr Li said his younger sister and her daughter had visited him once in Canada, about three years ago. Otherwise they kept in contact through phone calls, especially on occasions such as Christmas or New Year, and would typically contact each other about once a month. Mr Li has had the most contact with his older brother. Mr Li had regular, about twice a month, internet Skype phone calls with his elder brother. His brother had not visited Mr Li in Canada either, but his son had studied in Canada. Apart from his siblings, Mr Li said his various nieces and nephews maintained Facebook contact, but he did not share or participate in those exchanges.
This very limited evidence of the interaction between Mr Li and his relatives in Australia does not detract from the appropriate characterisation of his family association as “close and continuing”. By the same token the limited evidence does not encourage further characterisation of that association as one with “Australia”. I accept that it is difficult to define what extra element of that association would suffice to permit such a characterisation but, in my view, it certainly requires more than the comparatively slender evidence Mr Li has produced.
Evidence of active participation in Australian community based activities or organizations
Mr Li pointed to his two visits in 2012 as adding weight to his claimed close association with Australia. He attended his son’s Sydney University graduation in April 2012, and emphasised this as an “Australian educational event” that was more than a mere family gathering or celebration. In relation to his nephew’s wedding in late 2012 Mr Li pointed to the combined family and community significance of a wedding celebration, and described it as bringing together “different family social sectors and communities”. Again I think that these characterisations, whilst accurate at a level of generality, overstate the position in terms of Mr Li’s personal association with Australia. They were isolated events, of particular significance to the family and individuals concerned. Mr Li’s attendance on two such occasions does not meaningfully contribute to the characterisation of his association with Australia as “close and continuing”.
Apart from family related activities Mr Li says he is an active associate member of Australian Psychological Society (“APS”) and a member of “TRANZAC” - the Toronto Australia New Zealand Club. In relation to the former, Mr Li said he participates in the Society’s annual survey and resorts to its online facilities. On his last visit to Australia, in September 2013, he prepared a research proposal for the Society. He plans to attend the Society’s Golden Jubilee conference on the Gold Coast in September 2015. In relation to TRANZAC, Mr Li said the Club is based in Toronto and works to promote and support Australian and New Zealand culture there. He says he has participated in its various activities including music workshops and Australia Day celebrations.
Mr Li’s evidence about the extent of his involvement with APS and TRANZAC is again of a rather general and imprecise nature. It does demonstrate a degree of ongoing association with “Australia” - in the sense of Australian professional skills and cultural values. But it lacks the detail and scope that would permit an objective assessment of the association as “close and continuing”.
THE ASSESSMENT OF ASSOCIATION
I want to return at this point to the difficulty of the distinction between “Australia” and “Australians” in the context of assessing the closeness of a citizenship applicant’s association. There is, as Mr Li stressed in his submissions, no clear distinction. What is involved in the assessment of “association with Australia” is an impressionistic view that the applicant’s association involves something more than merely familial bonds, and satisfaction that can properly merit classification as a relevant closeness. The ACI policy describing a decision making process where “more or less weight” is to be given to the particular factors in ACI s 15.8 - depending upon whether the applicant has at least a threshold period of relevant Australian residence - points to one possible way in which that satisfaction may be derived. But Mr Li cannot point to even that threshold period of residence.
The delegate’s reasoning, in the passage that I extracted in paragraph 20 above, pointed both to the distinction between “Australia” and “Australians” and to Mr Li’s lack of “direct or personal” association with Australia. I am inclined to think that the latter emphasis is rather more informative, in the assessment required by ACA 2007 s 22(9), than the evocative, but elusive, distinction between “Australia” and “Australians”. As the delegate noted, Mr Li’s long and virtually unbroken period of Canadian residence, even after obtaining his initial Australian migrant visa, is hardly probative of a close association with Australia. Mr Li’s apparently long standing (ie probably since at least about 2008) intention to retire from his Canadian employment, and return to Australia, does tend to support his claim of association with Australia. But the claim is undermined, at least in relation to its classification as a “close” association, by the reality that until very recent events, his intended retirement and relocation was no more than an indefinite and unsubstantiated desideratum.
The cases to which I have referred in paragraphs 24 to 37 above emphasise the potential significance of an applicant being able to point to a significant period of actual Australian residence. Without such a period of residence it is hard to arrive at satisfaction that an applicant can demonstrate the required “close and continuing association with Australia”. The delegate alluded to the combined significance of Mr Li’s failure to spend any significant periods in Australia, and his asserted, but unsubstantiated, general intention about his retirement residence, as not conducing to satisfaction that Mr Li had a close and continuing association with Australia. I have come to the same view. Mr Li’s evidence has not satisfied me that his association with Australia, despite the various elements of his connection with Australians and Australia, should be regarded as a “close and continuing” association with Australia.
Even if I had been satisfied that Mr Li’s evidence of his intention to reside permanently in Australia had been crystallised by the time of his citizenship application, and justified acceptance of his claim that he had a “close and continuing association with Australia” I would still be disinclined to exercise the discretion conferred by ACA 2007 s 22(9)(d). As the Tribunal pointed out in Re Taher and Minister for Immigration and Border Protection [2013] AATA 917 (at [35] and [36]), satisfaction that a spouse applicant has a close and continuing association with Australia is not an independently permissive qualification for citizenship. It provides a basis for, but does not explicitly require, the exercise of a statutory power to treat a period of close association as a period of presence in Australia. The nature of the power, both in terms of the criteria on which it operates and its permissive terms, suggest that its exercise is intended to occur when the minister is satisfied that it is appropriate to treat a particular person’s “association with Australia” as either a substitute for, or as providing adequate reason not to require compliance with, the general residence requirement that would otherwise apply. In my view that question of appropriateness is not to be answered favourably to Mr Li, in the context where, at the time of his application, he had spent very little time in Australia, had no crystallised intention to begin to live permanently in Australia, and was not able to demonstrate any significant degree of involvement with the Australian community, other than occasional visits, and telephonic communications with his Australian resident mother and siblings.
DECISION
The decision under review is affirmed.
I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member P W Taylor SC ............................[sgd]............................................
Associate
Dated 29 April 2015
Date of hearing 23 February 2015 Applicant In person Solicitors for the Respondent Australian Government Solicitor
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