Chen and Minister for Immigration, Citizenship, and Multicultural Affairs (Citizenship) [2023] AATA 2156 (20 July 2023)

1. Section 21(1) of the Act provides that a person may apply to the Minister to become an Australian citizen. To be eligible, they must satisfy each of the eight general eligibility requirements under s 21(2) of the Act. Relevantly, s 21(2)(g) of the Act provides that:

(2) A person is eligible to become an Australian citizen if the Minister is satisfied that the person: > > ... > > (g) is likely to reside, or to continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved.

2. Section 24(5) of the Act relates to circumstances where an applicant is not present in Australia and if: the person is covered by s 21(2); the person does not satisfy the special residence requirements in ss 22A or 22B; and the Minister did not apply ss 22(9) or 22(11) in relation to the person.
3. Section 52(1)(c) of the Act is the source of the Tribunal's jurisdiction to review decisions made by the Minister or a delegate of the Minister under s 25 of the Act.

1. The Australian Citizenship Policy Statement (Policy) (issued 27 November 2020) and the Revised Citizenship Procedural Instructions (CPI) (reissued 26 February 2021) provide guidance for decision-makers exercising powers and carrying out functions under the Act. The Policy and CPI do not arise from specific provisions in the Act[11] and are not binding on the Tribunal. As held in Drake,[12] however, decision-makers should generally apply policy unless it is unlawful or 'there are cogent reasons to the contrary.' The Tribunal is satisfied there is no reason why the Policy or CPI should not be considered.
2. Relevant to this application is Citizenship Procedural Instruction 11-Assessing likelihood to reside or continue to reside in, or maintain a close and continuing association with Australia (CPI 11). CPI 11 directs decision-makers to adopt the ordinary meaning of the phrase 'likely to reside or continue to reside in Australia':

'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.

1. Relevantly for the purposes of this application, CPI 11 provides that a person's intention to reside in Australia should be investigated if the applicant has indicated they will 'reside outside Australia after obtaining citizenship...'.
2. CPI 11 also draws upon the ordinary meaning of the words in the phrase 'likely to maintain a close and continuing association', in noting that the Macquarie Dictionary Online defines:
   • 'maintain' as to keep in existence or continuance; preserve; retain;
   • 'close' as near, or near together, in space, time, or relation;
   • 'continuing' as to last or endure;
   • 'association' as the act of associating...connection or combination.
   • It is important to note that the requirement to maintain a close and continuing association refers to an association with Australia, not with Australians. This means that a close and continuing association with immediate/extended family or other social relationships or networks in Australia may not be sufficient to meet this legal requirement, although the merits of every case must be carefully considered.
3. CPI 11 further provides that the following factors may be relevant in assessing whether a person is likely to reside or continue to reside in Australia, or maintain a close or continuing association with Australia:

(a) whether they are currently renting a home and any lease arrangements; > > (b) whether they have purchased a property in their country of residence; > > (c) any assets or commitments that may cause them to reside in a different country; > > (d) the frequency and purpose of any visits to Australia if they reside overseas; > > (e) the frequency and reasons for any absences from Australia if they reside in Australia; > > (f) participation in the Australian community; > > (g) whether they have a family member who is an Australian permanent resident or an Australian citizen and that family member intends on residing in Australia.

4. The meaning of the words 'likely to reside' was discussed by Deputy President McMahon in Re Ho and Minister for Immigration and Multicultural Affairs [1994] 34 ALD 664, in the context of the phrase as it appeared in the now repealed Australian Citizenship Act 1948:

'It cannot mean "likely to take up residence in 18 months or 2 years time" or "likely to reside sometime 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.'

5. This guidance reflects the findings of the Tribunal in Re Bates and Minister for Immigration and Border Protection [2015] AATA 492 ("Bates") at [22]:

'In her evidence before the Tribunal, Ms Bates said that she intends to return to live in Australia. However, given her mother's medical condition, she does not know when she and Mr Perkins and their son will return permanently to live in Australia. Put simply, at present Ms Bates has not determined a date on which she and her family will return to live in this country. Therefore, Ms Bates is unable to state that if granted Australian citizenship she will return to reside in Australia soon after being granted Australian citizenship...in these circumstances, Ms Bates has been unable to satisfy me that she intends to reside or continue to reside in Australia...'

6. In finding that the applicant was also unlikely to maintain a close and continuing association with Australia, the Tribunal in Bates placed weight upon the fact that the applicant had no property in Australia, had no evidence of any plans for future Australian employment, was currently residing in the United Kingdom and could not be exact about her intention to return to live in Australia.

1. The issue for determination is whether the Applicant is: (1) likely to reside or continue to reside in Australia; or (2) to maintain a close and continuing association with Australia. Only one of these must be met for citizenship to be granted and turns on evidence as at the time of this decision about the Applicant's plans and intentions.

1. The following documents were taken into evidence at the hearing:

(a) Section 37 documents lodged by the Respondent numbering 187 pages;[13] and > > (b) Bundle of documents lodged by the Applicant numbering 257 pages.[14]

1. In his review application the Applicant stated the following:

'In the decision, I was rejected the Australian citizenship due to not satisfying Paragraph 21(2)(g) that a person must be likely to reside in, or continue to reside in Australia, or to maintain a close and continuing association with Australia if the application is approved. I believe that the assessment is wrong regarding the reason I went to the United States and the negligence of my strong relationship with my family in Australia. I believe that I can show that I am likely to maintain a close and continuing association with Australia and thereby satisfying the paragraph. > > Firstly, the reason why I went to the US was to get a better education in Physics. I applied and got into a renowned American university, which was seen as a rare opportunity for most students. Later on, I decided to double major in History as well. The decision maker believes that "my studies have shifted from Physics and Maths to History" and he is "not satisfied that equivalent studies are not available in Australia." However, I am not just switching majors, but double majoring in Physics and Honors History. Such combination would not be possible in Australian schools. Moreover, I am holding a F-1 visa of the United States, which only allows me to finish my study there, and thus temporary by nature. I will likely return to Australia for a History PhD program in schools like the Australian National University. > > Secondly, I would like to maintain a close and continuing association with Australia. The decision maker noted the absence of detail regarding my home in Australia. It was due to my lack of experience with documentation, and I was not specifically instructed which types of evidence should be submitted. I can in fact provide more substantial proofs. > > Both of my parents are permanent residents of Australia. Our family moved to Melbourne in 2015 and we have been living happily there since then. My parents now own three houses in Australia, one of which [address removed] they promised to give me for residing in Australia. I can support these claims with the enclosed documents. > > These should serve to demonstrate my "likeliness of maintaining a close and continuing association with Australia". Also, I would like to note that the family bond is strong, and the notion of family reunion is crucial due to the traditional Chinese values that we appreciate, so please give it more consideration. > > Lastly, although I am still in the middle of finishing my study in the US, I return regularly to visit friends and family in Australia during the holidays, as I have done so in July, August and December 2022. Customs should be able to confirm these visits. I will visit again this July and August, too. > > Overall, in the previous assessment there were misunderstandings and/or misjudgments regarding my intention and association with Australia. I believe that all the above stated things and enclosed documents together with the documents and information the Department of Home Affairs already received during my application can demonstrate my likeliness of maintaining a close and continuing association with Australia and it is why I appeal to you to review and change the decision.'

2. During his oral evidence the Applicant adopted his seven-page statement dated 6 July 2023 as true and correct. His evidence is summarised as follows:

(a) The Applicant referred to business visas granted to him, his parents, and several other relatives.[15] He has lived in Australia since 2015 and completed his secondary education at a private school in Melbourne. During his Year 12 International Baccalaureate studies he concurrently undertook a first-year physics course at Melbourne University and achieved a very high university entrance score.[16] He is a member of his former high school's alumni community, has a life membership of the school association, provided support to the school in 2021 during the COVID-19 Pandemic, and is reported to have frequently called on and visited 'teachers from his time at the school'.[17] > > (b) The Applicant departed Australia in July 2021 to study theoretical physics at a United States ("US") university. He subsequently decided to do a double major in physics and history. His current US student visa expires in April 2024,[18] by which time he expects to have completed his studies. Given the complexity and challenging nature of the Applicant's Honours research tasks, there is some prospect he may need to extend his studies by a year. The Applicant estimates this probability at about 30% but hopes it will not be required. He has not applied to extend his student visa in the United States, nor other arrangements such as his current apartment lease.[19] He remains focussed on completing his overseas studies by April 2024. > > (c) The Applicant referred to some friends he has made in the United States and twice-weekly church attendance for Bible Study and Sunday Service. He also has US bank and telephone accounts. He goes out with American friends at times, but his closest and most enduring friendships remain in Australia. > > (d) The Applicant said he remains in frequent contact with family and friends in Australia by telephone and an application that enables video calls and gaming. He and his friends work around the time difference between the United States and Australia by staying up late or getting up early. When not required to study on campus the Applicant returns to Australia. He has returned on three occasions since July 2021 during semester breaks. His most recent arrival was in June 2023, and he is scheduled to returns for his next semester of study in mid-August.[20] > > (e) The Applicant said while living in Australia he was baptised at the church he and his mother attend. He has maintained contact with the pastor and some parishioners while in the US. Statements have been provided in this regard. > > (f) Completion of the Applicant's overseas studies is the key enabler for his post-graduate enrolment and career plans in Australia. He aspires to undertake a Doctor of Philosophy at an Australian university and eventually begin a teaching career in Australia. The Applicant said he has explored several post-graduate courses in Australia but none in the United States. He has not yet applied because enrolments are not open for post-graduate courses in mid-2024 or early 2025. > > (g) The Applicant said he remains financially reliant on his parents for overseas studies. He has never worked because of their generous support, which includes regularly transferring funds for his overseas rental and other living costs. > > (h) The Applicant said his mother lives mostly in Australia and used to run a business here. His father spends about a third of his time here and the rest in China where he runs a business.[21] His parents long-term plans are to stay permanently in Australia. The Applicant said his mother has 'already made a change' by residing longer in Australia than in the past, although she travelled to China during the COVID-19 Pandemic because her parents became quite ill. > > (i) The Applicant's parents own several residential properties in Australia.[22] They have promised to transfer one to him after he completes his overseas studies and returns to Melbourne.[23] They have not done so yet, but the Applicant expects this will be a formal transfer.

1. The Applicant's mother adopted her three-page statement dated 5 July 2023 as true and correct. It was completed with the assistance of a lawyer who speaks Chinese. The witness gave her evidence with the assistance of an interpreter in the Chinese (Mandarin) language. Her evidence is summarised as follows:

(a) The witness previously ran an export and event coordination business in Australia. > > (b) During the COVID lockdown period the witness sought an exemption to return to China because her mother suffered a heart condition and her elderly father contracted COVID. She has also visited her parents on other occasions. > > (c) The witness said she and her husband decided to call Australia home because they are attracted to Australian values. They have made adequate financial provision for their retirement needs. The witness has no plans to return to China on a permanent basis. Her husband still spends a significant proportion of his time there running a business but frequently returns. By way of example, he most recently departed Australia around mid-June 2023 and returns by the end of July. She estimated that on other occasions he is in China for a month or two before returning to Australia for a month. The witness does not accompany him on these return business visits. > > (d) The witness said she and her husband own several residential properties in Australia and China. The ones in China are occupied by her and her husband's parents. She and her husband intend gifting one of their Australian residential properties to the Applicant after he graduates in the United States and returns to Melbourne. She said it would be 'formally given to him' by legal transfer and they have consulted with an accountant about the most appropriate way to do this. > > (e) The witness said the Applicant should finish his studies around May 2024 and then return to Australia where he will 'engage with professors' about his future study and career aspirations. When asked about the prospect of the Applicant extending his studies in the United States, the witness referred to the significant challenges of his double degree and said if he must study longer, she will support him.

1. The Respondent accepts 'it is possible' the Applicant will reside in Australia but contends the evidence does not 'establish it is probable he will return'. The Respondent also refers to the Applicant's '_sporadi_c' presence in Australia during the last two years, the fact his parents are yet to act on their promise to transfer a property to him, and his failure to enrol yet for post-graduate studies in Australia. The Respondent contends the Applicant's plans are 'vague' and contingent on successful completion of overseas studies, which may not be accomplished by April 2024. In terms of the Applicant's faith, it is submitted his interaction with a Melbourne church was for a relatively short time after his baptism, and he had since spent 736 days outside of Australia since mid-2021.
2. The Applicant submitted that regard must be had for the quality of his Australian ties. This was put in the context of Australia being the place where his closest connections and values align. Reference was also made to the Applicant having almost fulfilled his dream of completing overseas study at a prestigious university and the unsurprising nature of his current lack of prominent contribution to Australia through work or paying taxes. This is because he is only 22 years' old and yet to complete the foundational studies on which his intended career will be built. Moreover, reference was made to the considerable contribution the Applicant's parents have made through satisfying the conditions of their business visa, by making a considerable financial investment in Australia and providing jobs to others. The Applicant contends it is a 'legal certainty' he will return to Australia, due to the conditional nature of his United States visa, his continuing reliance on his family's support in Australia, and because he loses Chinese citizenship upon gaining Australian citizenship.

1. The Tribunal considers the Applicant's testimony, that of his mother, and the many statements provided, to be honest and forthright. An example of this is the Applicant's concession that he may need to extend the completion of his double degree, because of its complexity, even though he was approximately 70% sure he would not have to.
2. The Tribunal finds that:

(a) The Applicant most recently arrived in Australia on 22 June 2023 and the prohibition under s 24(5) of the Act, as summarised earlier at paragraph 10, does not apply. > > (a) The US university the Applicant is enrolled in, is ranked amongst the World's best higher education institutions. It is colloquially referred to as an 'Ivy League' college. It is to the Applicant's credit that his commendable high school result, concurrent studies in physics at Melbourne University, and other skills and attributes qualified him for admission to this prestigious institution. > > (b) The Applicant's decision to complete double majors in physics and history overseas is unremarkable. There is no evidence to support the Respondent's contention that a comparable double major was available to him at an Australian university. In any event, not much turns on that. > > (c) The Applicant can currently legally reside in Australia, China, and the United States. He has no right under his existing US student visa to remain there beyond April 2024. There is no evidence he has applied to do so. > > (d) The Tribunal was persuaded that Applicant intends pursuing future post-graduate studies and an Australian career in academe when his US course is completed. His overseas stay is not indefinite on these facts and contrasts with the facts in Bates. He frequently returns to Australia during semester breaks, maintains close contact with his parents, friends, former teachers, pastor, and members of his faith community. This, after all, was his home from Year 8 to the completion of Year 12, which is where most of his teenage years and early adult years were spent. Although he has lived mostly in the US for much of the last two years, this is strictly conditioned by the terms of his student visa and college enrolment. > > (e) The Respondent refers to a lack of evidence about the Applicant's future enrolment in an Australian university 'nor any offer of employment' upon his completion of US studies. This is again unremarkable given that acceptance for future study in Australia is necessarily conditioned by his US college results. Moreover, no evidence was led by the Respondent to show that enrolment in an Australian university is currently available to the Applicant some 10 months before he completes his overseas studies and a year or eighteen months before his post-graduate studies here would commence. > > (f) The Tribunal accepts the Applicant's parents intend transferring a residential property to him when he returns to Australia after completing his overseas studies. They are yet to act on this, but there is no evidence to contradict their ownership of multiple properties nor documented gifting intentions. > > (g) The Tribunal accepts that the supportive letters and other evidence tendered by the Applicant persuasively establish his ties are to Australia rather than solely to individuals living in Australia. These are reflected though close family ties, friendships from his school days, and congregational links. Within the constraints of his circumstances, he has maintained these ties by telephone, video, interaction through social media, online gaming, and visits whenever he can. They persuasively evince the Applicant's close and continuing association with Australia within the meaning of the Act and policy. The number of days he has spent outside of Australia is unremarkable given his academic study program in the United States. This quantitative fact does not diminish the persuasiveness of his links or intention to reside in Australia when his overseas studies conclude in April 2024. > > (h) The Applicant's mother and other extended family members and friends live in Australia. His mother spends most of her time here, while his father spends about a third of his time in Australia, when not travelling internationally to attend to business interests. Although the Applicant has extended family in China such as maternal and paternal grandparents and other relatives on his mother's side, who he maintains contact with and visits, there is no evidence of any intention to resume his life in China after his studies in the US conclude. Indeed, the corollary of a grant of Australian citizenship is loss of Chinese citizenship.

3. Having been satisfied that the Applicant is likely to reside in Australia at the conclusion of his studies, it is not necessary to also consider whether he is likely to maintain a close and continuing association with Australia. The Tribunal does so for completeness.
4. When regard is had for the Applicant's ties to Australia since 2015, his physical absence on overseas study since July 2021 does not diminish his strong financial, emotional, social, and practical ties to Australia. Having spent the first 14 years of his life in China, he then spent most of his teenage years and early adulthood in Australia. The totality of the evidence discloses that his strongest ties are here. His parents and other family members are permanent residents who intend continuing to reside in Australia. He has continuing access to his parent's home and an undertaking that they will provide him with his own home at the completion of his studies and return to Australia. There is no evidence the Applicant has assets in any other country than Australia, except for living costs provided by his parents for his conditional stay in the US. The frequency and purpose of his return visits to Australia is to maintain his established ties here and to continue his participation in the community, including as an alumnus and with his faith community and social network.
5. The Respondent refers to the Applicant not providing any evidence about employment in Australia, or source of income, or payment of taxes in Australia, and only limited evidence of community participation. The Tribunal disagrees with the submission regarding sources of income, given there is no evidence to contradict he has been financially reliant on his parents since birth. It is accepted the Applicant has not yet worked or paid taxes, which is unexceptional given his age, the financial support of his parents, and prioritisation of studies. The latter is the key enabler to his future ability to work and pay taxes, and there is no evidence the Applicant intends doing this anywhere other than in Australia. The Tribunal considers his engagement in the community, for someone so young, amply establishes his close and continuing association with Australia.

1. The evidence persuasively satisfies both limbs of s 21(2)(g) of the Act, although satisfaction of only one is necessary. The Tribunal is satisfied that if the Applicant's citizenship application is approved, he intends residing in Australia at the conclusion of his overseas studies and, in the meantime, continues to maintain a close and continuing association.
2. The totality of the evidence supports a reliable conclusion that the Applicant is not simply returning to Australia for frequent holidays but to revisit and foster the strong ties he enjoys to the Australian community, which were established during his formative years. One of the clauses at section 3.3 of CPI 11 states that a person's absence from Australia would not normally be of concern if it was of a temporary nature such as the person was enrolled at an overseas university where equivalent studies are not available in Australia. The Tribunal accepts his motivation has been to gain qualifications at a prestigious overseas university before pursuing post-graduate studies in Australia and then joining academe.

1. It follows that the Tribunal sets aside the decision under review and remits the matter to the Respondent for processing of unfinalised citizenship requirements, with a finding that the Applicant satisfies s 21(2)(g) of the Australian Citizenship Act 2007 (Cth).

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

...............................[sgd].........................................

[11] Minister for Home Affairs v G and Another [2019] FCAFC 79; (2019) 226 FC 569, 586.

[12] Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 2 ALD 634.