Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 Minister for Immigration, Local Government and Ethnic Affairs v Gray
The Applicant's mother made statutory declarations on 10 July 2025 and 15 September 2024. She also gave evidence at the hearing. In the first statutory declaration the Applicant's mother provided background outlining her family circumstances, connections and ties to Australia.
In summary, the Applicant's mother first travelled to Australia on a student visa in September 2008. Both she and the Applicant's father were approved offshore to receive skilled independent visas in May 2011. Both the Applicant's parents sponsored their parents to apply for non-contributory parent visas in 2017.
The Applicant's parents purchased their first property in Australia in 2017. Their properties are currently being rented. Although tenanted, the property they intend to reside in when they return to Australia does not have an ongoing lease agreement.
The Applicant's mother became an Australian citizen in May 2019 and had her Hokou cancelled in late 2022. China does not recognise dual citizenship, but the Applicant's mother has been able to remain in China as the Applicant's father has retained his Chinese citizenship.
When the Applicant's mother was pregnant with the Applicant, she had intended to return to Sydney, but was unable to because of complications with her pregnancy. Consequently, the Applicant was born in China.
The Applicant and his mother regularly travelled between Australia and China. In 2019, the Applicant and his mother returned to China to join the Applicant's father, who was in China to sell the family business and prepare for their permanent relocation to Australia. The Applicant's mother said that that the decision to sell the family business demonstrates that they are committed to relocating from China to Australia.
Sale of the family business proved more difficult than they had hoped. The Applicant's father's parents demanded that the business was sold for a 'good' price. The Applicant's parents were also mindful they needed enough money to ensure they were able to pay for the Applicant's school fees. Attempts to sell the business were complicated as the business comprised of three factories - two in China and one in Europe. Further, other parties had a share of the business, and they all needed to agree to the terms of its sale.
The Applicant's mother said that the pandemic had also affected her plans. The lockdowns prevented she and the Applicant from leaving Shanghai for two years. The pandemic also affected the sale of their business.
The Applicant was most recently in Australia from 20 December to 29 December 2023. His mother said the purpose of the visit was to inspect the grammar school the Applicant intended to attend. Neither the Applicant nor his mother have visited Australia since.
The Applicant has been enrolled at an international college in Shanghai since 2017.[4] The Applicant's mother confirmed the Applicant had attended childcare and kindy in Australia, but had only ever attended school in Shanghai.
The Applicant's parents wanted to have another child, and his mother was referred to a doctor in the United States. Beginning in 2024 and throughout 2025, the Applicant's mother travelled frequently to United States to undergo IVF treatment, which was ultimately unsuccessful. However, she has obtained a surrogate who is carrying her child and is due to give birth early in 2026.
When the child is born, the Applicant's mother plans to bring both her children to Australia. When asked about the surrogate child's citizenship, the Applicant's mother she said she anticipated the child will be an Australian citizen. She said that as surrogacy is 'illegal' in China, and the child will not be entitled to stay in either the United States or China, which she contends demonstrates her commitment to reside in Australia.
Regarding timing, she said she will bring the child to Australia a few months after the birth, in part because it will take some months to process paperwork and documentation. She anticipates she and her two children will return to Australia towards the end of 2026 or early 2027. She confirmed that she and the Applicant will return irrespective of whether he is enrolled at his preferred school in Sydney, or the sale of the family business.
Turning to the considerations set out in CPI 11, I am satisfied that the Applicant and his family have ordinarily resided in Shanghai since January 2019. The Applicant and his mother returned to Australia in December 2019 and departed four days after lodging the application for citizenship. The Applicant has returned to Australia only once - staying for 9 days in December 2023.[5]
The Applicant's mother claims that they have been attempting to sell the family business since 2019. She has provided an explanation as to why it has taken so long, but has not provided any evidence to support her explanation.
The Applicant's mother and father both have sponsored their parents to move to Australia, but it does not appear that they have been granted visas. The Applicant's mother has stated that the Applicant sometimes stays with his grandparents. The evidence is that the Applicant's grandparents are a relevant consideration, and there is no guarantee that they will be issued visas. The extent to which their interests will influence whether the Applicant and his family choose to reside in Australia is unclear.
The Applicant's mother says the Applicant's preference is to study at a particular college in Sydney and the property they own and plan to reside in is convenient should he attend that college. The Applicant's mother has engaged an agent to facilitate the competitive enrolment process and contends that she and the Applicant will return to Australia irrespective of whether he is able to be enrolled in his preferred school. The Applicant's enrolment at an international school in Shanghai adds some weight to his stated intention to study in Australia. However, he is yet to be enrolled in his preferred school. He remains enrolled at the international college in Shanghai where he has studied in since August 2017, and he is able to complete his studies there.
The Applicant's mother does not have any definite plans to return to Australia and the family has resided in China for more than five years. She gave evidence that she plans to return to Australia in late 2026 or early 2027. She has not provided any documentary evidence to support the proposed schedule or relating to her second child. In the July 2025 statutory declaration, the Applicant's mother stated she was not prepared to provide any medical records or documents from the United States.[6]
The Applicant's mother's intention to return to Australia is largely supported by general plans and vague timing for which there is little evidence. In so much as they exist, her plans are contingent on factors largely outside of her control. She has made no concrete plans to return to Australia and on balance I am not satisfied that the evidence supports a finding that she or the Applicant are likely to reside in Australia.
The Applicant and was born in Shanghai and from July 2014 he regularly spent time in Australia. The duration and frequency of his visits to Australia reduced after he started school in 2017. Since January 2019 he has visited Australia twice - once to inspect the college in which he wishes to enrol and another time to lodge his application for Australian citizenship. It is not in dispute that he has only been in Australia for a total of 13 days since the citizenship application was lodged in 2019.
The Applicant has not provided any evidence of having a close and continuing association with Australia. The Applicant's immediate and extended family are in China and there is no evidence of his having engaged with Australia or Australians. The two properties owned by the Applicant's parents are currently tenanted. Although they pay rates and other costs associated with their properties, there is a dearth of evidence to support the Applicant or his mother are likely to maintain a close and continuing association with Australia.
I am required to consider whether the Applicant is likely to suffer significant hardship or disadvantage if the application is refused using the discretion provided by section 24(2) of the Act. Refusal to confer Australian citizenship will not affect the Applicant's status as permanent resident and he will have permission to stay indefinitely if he returned. He would remain able to access appropriate education, health and social welfare services in Australia if needed. He may apply for citizenship at a later date should he consider he meets the requirements. The Applicant is able to remain with his parents in China or in Australia should they return.
In the circumstances, I do not consider that the Applicant is likely to suffer any hardship or disadvantage by refusing the application.
[2]
Having regard to the policy guidance, the discretion to refuse the application under section 24(2) should be exercised.
[3]
[2] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645
Parties
Applicant/Plaintiff:
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 Minister for Immigration, Local Government and Ethnic Affairs
Respondent/Defendant:
Gray
Legislation Cited (1)
Citizenship Act 2007
Cases Cited (2)
DGFS and Minister for Immigration and Citizenship (Citizenship) [2026] ARTA 155 (9 February 2026)
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 Minister for Immigration, Local Government and Ethnic Affairs v Gray[1994] FCA 1052; (1994) 33 ALD 13, 30