1. There followed a question to this effect: if his content creating career in Vietnam had proved so fruitful why has he not returned to Australia sooner? The reasons he gave related to (1) his first daughter being a difficult child to parent during her early infancy;

(2) both of his parents still working - his mother is an English teacher and his father, a dentist; and (3) his mother-in-law is working part-time in Vietnam and nearly 70. He told the hearing that in July of this year he ceased working at his father's dental clinic in Vietnam and that in November of last year he signed a contract with a Vietnamese entertainment company to create and provide content for social media platforms. If he moves to Australia, he said the benefit of that contract will continue.

1. He told the instant hearing that one of the reasons he entered into this contract with the Vietnamese entertainment company was because "...they can provide me with tonnes of benefits...they can hook me up with various jobs." He said customers who, for example, wanted a promotional video for their products would contact the Vietnamese entertainment company and then the company "...will work with me.

...We'll work out a price, we'll work on what we need to do." The Applicant cited the signing of this contract with the Vietnamese entertainment company as another reason why he stayed in Vietnam.

1. At an earlier stage of his application, the Applicant mentioned an intention to explore employment opportunities with the St George bank in Australia. He was asked about this in cross-examination and confirmed he was no longer pursuing any employment with this particular bank. The Applicant was then taken to his efforts to find employment in Australia via "SEEK". He said he was "aiming for marketing or social media management positions" via SEEK and that he had sent "Just three or four [applications] because I sent one and then I sent two and then nobody replied and I'm like it's probably the reason why is because I'm not physically in Australia."

1. He spoke of a longer term intention to settle with his family in the Newcastle area of New South Wales.6 He added that the jobs he wants are situated in Sydney and not in the Newcastle area. He spoke of him and his family having to temporarily settle in Sydney for a couple of months but that they ultimately want to permanently settle in Newcastle because they have friends or other connections in Newcastle. In terms of accommodation, he was asked whether he had made any application for a rental home in which to reside in Sydney and he said he had not done so as yet. If he comes to Australia ahead of time from the rest of his family he spoke of having a friend in Sydney with whom he could reside on a short term basis.

1. He thought this friend lived at "Milson Park" but he could not clearly recall if that was the precise location of this residence. He added "I, I need to ask my wife because she's actually my, my wife's friend. But the reason why we can rent that property is because she's also a Vietnamese and she knows my wife and I already stated that I can't really

apply for any rental property at the moment since I have no pay slips or no bank...statements in Australia. That's why nobody would take me."

1. The Applicant was then taken to an earlier email he submitted in the course of this matter in which he spoke of having established a business in Vietnam in 2023 that was in its early stages and experiencing difficulty. He explained this business was a barbershop and that he became involved in it at the request of a friend who asked him to put in some start-up capital. The Applicant said he did make this capital contribution but that the business nevertheless failed. He said that barbershop business was "kind of in the past" and that "it's all done."

1. The questioning then moved to the Applicant's prospects of finding remunerative employment relatively soon after arriving in Australia. He was asked that if he is not successful in finding employment in Australia by the end of this calendar year, would that mean he would return to Vietnam? He responded in the negative and said "...I still have my content creating job to back me up financially." The Applicant's cross- examiner then asked the Applicant whether he had set himself a time frame within which to find employment in Australia and he responded with "...by the end of November, yeah..."

1. The following question asked him what his plan was if he was not successful in securing employment in Australia by the end of November this year. He responded with this: "I'm pretty confident that it's going to be successful. That's why we haven't planned anything related to me not finding a job there. Since I'm pretty big on socials in Vietnam, I believe that it's going to be fairly easy for me to get a job in marketing or a social media management position there. If anything, I can still reapply to St George because I still have connection there plus the income from my content creating job as well." The Applicant conceded that applying for a position in Australia in October or November this year would be a time-consuming process with quite possibly significant lead time until he could actually commence work if successful in any job application. He added: "I do believe...the only reason why I haven't got any replies from....the place that I've sent my applications to is because I'm not physically in Australia and they want people to actually be there to film the company and to work with them."
2. The cross-examination then moved into the realm of accommodation in Australia and, in particular, the extent to which the Applicant had made applications for rental properties in which he and his family could reside here. He conceded that he had not made any rental applications. He sought to bolster the unsatisfactory state of his evidence on the accommodation issue with this: "...I've only talked to...he works in real estate...he's one of these agents, real estate agents.....I talked to this real estate agent and he's one of my friends...I talked to him...I even called him in late, I believe late July, early August, talking about my circumstance. But he advised me that without a pay slip, it's really hard for him....to talk to other real estate agents to apply for me because it's very highly likely that they will not take my application."

1. In light of the latter part of his answer it was put to the Applicant that he did have income tax returns together with income statements and bank statements showing that he has derived at least some measure income from his claimed income-producing activities. He was reminded of his claim to earn money from his content creating contract with the Vietnamese entertainment company. He then explained how he receives money via the abovementioned contract but that payment of this money is not evidence by actual (or the equivalent of) what we would know in Australia as "pay slips" because, according to the Applicant, "That's what a normal 9 to 5 worker would get."

1. He was pressed about the absence of any such documentary evidence to support his claim of receiving payment for this content creation work from the Vietnamese company and the highest his evidence went was for him to say "But it's gonna be, I mean, it's gonna be really clunky."

1. The cross-examination then moved to the Applicant's asset position in Vietnam. He initially confirmed that he does not own any property in his name in Vietnam. But he then suddenly recalled that either last year or the year before that his parents signed some sort of "contract" to the effect that they would transfer or otherwise provide their apartment in Vietnam to him. He could not recall or describe the precise nature of this "contract". He did not think it was in the form of some type of testamentary instrument

such as a last will and testament but that it was intended to have operative effect

1. Despite the claimed existence of this "contract" via which his parents are to give him their apartment in Vietnam before they pass away, the Applicant said "So I'm not sure of the process to be honest, I'm not interested in this property...We're not interested in...staying in Vietnam long term. That's why I can't really remember what stage the process is right now." In terms of his own current residential arrangements in Vietnam, the Applicant told the instant hearing that he is renting a property there. He added that the lease over the subject property is expiring "in just two weeks". After that, he said he and his family would relocate to his parents' apartment which he described as "...a huge apartment unit with three bedrooms."

1. He agreed the plan was for his wife and children to reside at his parents' apartment while he tried to re-establish himself in Australia. He said his wife and children would reside at that apartment "...for hopefully a month, not longer...and they will be joining me [in Australia] in late November." He added that his family would be joining him in Australia in November regardless of whether he found employment in Australia by then. He attributed this confidence to a "worst case scenario" where even if he does not get a job by November, the income to support his family would come from (1) his wife who will find full-time work in Australia; and (2) his content creating work plus (3) accommodation would not be an issue because they could all move into the property of his wife's friend.

First issue: s 21(2)(g) - is the Applicant likely to reside in Australia if this application for citizenship by conferral is approved?

1. I am hard-pressed to reach any level of satisfaction about any such likelihood. This is especially the case when regard is had to the factors to be taken into account as they appear in Citizenship Procedural Instruction 11.7 Apart from one week in February

2024, the Applicant has been in Vietnam and outside Australia on a continuous basis since 5 October 2022. There is a lack of clarity and consistency around precisely when the Applicant will return to Australia. At the time he sat the citizenship test in October 2022, he told the Respondent-Minister's Department he would only remain in Vietnam for about six months after that time. Yet he continues to live in Vietnam with his wife family who welcomed the birth of their second child (in Vietnam) in June 2024.

1. His next disclosure to the Respondent-Minister's Department was that he would return to Australia in the middle part of this year. That has not occurred and he told the instant hearing that he would come here in around October and that his wife and family would follow in November. I have serious misgivings about how the Applicant will sustain himself and his family in Australia. He spoke of his wife easily finding "full-time work" almost automatically yet the evidence around precisely what sort of work she would do, and her prospects of finding any such work, is scant, vague and ultimately unconvincing.

1. He also spoke of contenting himself with part-time employment in Australia but there is little or nothing to corroborate precisely what any such role would look like, when it would be available to him and what the terms and conditions of such employment would be. There was once an intention to seek employment with St George Bank in Australia but that possibility was abandoned. Yet the Applicant thinks he can automatically re-commence an attempt to obtain work with that bank were he to come here. As was alluded to during the cross-examination, the securing of remunerative employment is not akin to a light switch that gets switched off and on at the behest of the Applicant. It is, just like most other things between an individual job-seeking applicant and a major institution, a deliberately gradual process very often with significant lead times until any final outcome is known and actualised.

1. I am likewise unconvinced by his evidence around his claimed collaboration with "a Vietnamese entertainment company" as a content creator for clients wishing to promote something on a social media platform. The evidence around this claimed "contract" with that Vietnamese company is his and his alone. There is no copy of any such contract before the Tribunal. No director or principal of that Vietnamese

company was produced to corroborate the Applicant's story. His evidence about how he is apparently remunerated for this claimed work is his and his alone. He spoke of being unable to produce evidence of any such flow of payments for this work because it would be "clunky" to do so.

1. The undeniable reality about (1) his wife's prospects of securing full-time employment and (2) his prospects about securing part-time work in Australia are that those prospects are, at best, speculative. A similar characterisation can be applied to the evidence around any prospects of accommodation in Australia. The highest it went was that there was a friend of his wife's who may be able to accommodate the Applicant and his family were they to come here. He "reckons" he and his family will be able to stay at that property the precise location of which he is not certain and "can't really recall." He spoke of this accommodation with the wife's friend being a temporary measure intended for only several months and that he would otherwise seek accommodation in either Sydney or Newcastle. Astonishingly, for a person who intends to come here next month in October and for his family to follow him in November, he told the instant hearing he is yet to make any application for a rental property to house him and his family.

1. I agree with the Respondent's submission during closing submissions: the efforts towards both employment and accommodation have not been anywhere near as fulsome as they needed to be for someone professing an intention to reside in Australia with his family. This is all the more surprising in circumstances where there is at least some evidence before the Tribunal of a possibility of the Applicant's wife working in a real estate agency in Australia.

1. I am also hard-pressed to understand the overall utility of the Applicant relocating himself and his entire immediate family to Australia given that (1) both of his parents reside in Vietnam; (2) his mother-in-law resides in Vietnam; (3) these other immediate family members have assisted the Applicant and his wife with caring for their two infant children; and (4) his parents have a large apartment in Vietnam that can comfortably accommodate him, his wife and their two infant children.
2. There was the further evidence about the "contract" the Applicant apparently has with his parents whereby they, before their respective deaths, would "pass the property" to the Applicant. The Applicant did not articulate precisely where he was going with this evidence. It was not clear if the purpose of this evidence was to convince the Tribunal that he would eventually have a property in Vietnam or whether upon receipt of this property he could sell it and apply those funds towards purchasing a property in Australia.

1. I reject this evidence on several grounds: (1) the evidence of this "contract" with his parents is his and his alone; (2) we do not know when this "passing" of the property to him will ever occur; (3) there is no copy of "the contract" before the Tribunal; (4) there was no corroborative evidence from either or both of the parents about this arrangement; (5) there was no corroborative evidence from the Applicant's sister who, according to him, is the beneficiary of a similar "contract" with the parents for the receipt of another apartment they own in Vietnam; and (6) we do not know the value of this property, how long it would take to sell in Vietnam and what it could buy the Applicant in Australia.

1. For the Applicant to meet this first limb of s 21(2)(g) of the Act I must be satisfied - upon applying the ordinary meanings of the words "likely" and "reside" - that if citizenship by conferral were awarded to the Applicant he will probably live in Australia permanently or for a considerable period of time. This permanent residential relocation in Australia must occur "....immediately, or very soon after, being granted a certificate of citizenship or within a reasonable time thereafter."8 It seems clear the language of s 21(2)(g) of the Act speaks to an "...intention ...which...is to be acted upon within a reasonably short time frame."9 I have sought to recount the evidence and cannot reach any state of satisfaction that the Applicant would likely reside in Australia were his application for citizenship to be approved.

Second issue: s 21(2)(g) - will the Applicant maintain a close and continuing association with Australia if his application for citizenship is approved?

8 Re Ho v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664, per DP McMahon at [31].

9 Re Saba v Minister for Immigration and Border Protection [2014] AATA 579, per SM Taylor SC at [50].

1. This question requires objective assessment by reference to the relevant factors contained in CPI11.10 I will now apply the evidence to those factors. The Applicant is not currently renting a home in Australia. He thinks there is a possibility of him and his family temporarily residing at the home a friend of his wife. He is not certain where that property is and, beyond that initial arrangement, the Applicant has made no enquiries or arrangements towards securing other rental accommodation either in Sydney or Newcastle.11 The evidence is scant and virtually non-existent about any involvement he may have with community groups and local organisations in Australia.12

1. Except for one week in February 2024, the Applicant has been constantly outside of and away from Australia since October 2022. There has been nothing in Australia compelling him to be here such as, for example, mandatory personal attendance as part of a given course of study undertaken here which will facilitate his capacity to find and retain employment here.13 The Applicant's absence from Australia cannot be explained in terms that meet the requirements of CPI11. His absence in Vietnam can instead be primarily explained on three grounds: (1) he has assisted his father with his dental clinic business in Vietnam; (2) he has conducted his own businesses in Vietnam as a social media content creator and as a co-owner in a barbershop business; and (3) he and his wife have been raising their family in Vietnam. He has not been absent in Vietnam because, for example, he is undertaking temporary work in Vietnam for any Australian based company or he has been accompanying his wife in Vietnam who is there in the capacity of an employee of the Commonwealth of Australia or that he has been participating in Australian cultural activities or otherwise promoting Australia in Vietnam.14

1. In his oral evidence to the instant hearing, the Applicant initially confirmed he does not own any property in his name in Vietnam. But there followed the somewhat peculiar and poorly articulated story about "a contract" between him and his parents, apparently entered into in "late 2023" whereby they would "pass the property" to the

10 Ul Haque v Minister for Multicultural Affairs and Citizenship [2013] AATA 118, per SM Britton at [44].

Applicant at some point in their lifetimes. I have earlier outlined my thoughts and impressions of this evidence which I repeat for the purposes of this second limb. What is not known about this property is whether the Applicant will ever receive it. What is known is that it is a large apartment and that the Applicant and his family will reside in that property. If unsuccessful in the instant application, it is not an unfair or unreasonable inference to suggest and find the Applicant will be inclined to reside in that apartment in Vietnam with his family.15

1. True it may be that the Applicant's wife and one of his daughters hold Australian passports. I do not consider these passports are indicative of a close and continuing association between the Applicant and Australia. The grant of these passports is more a product of the period he spent here from the time of his initial arrival in mid-2016 until his departure in October 2022 than of any close and continuing association he has with this country. His second daughter, for example, does not hold any Australian passport.16 The evidence of one of the daughter's enrolment at a childcare facility should, I think, be approached with caution. Detail around that enrolment - other than that she is on waitlist for a place - is scant. If the Applicant were truly seeking a close and continuing association with this country on and from October / November this year, it stands to reason that something as critical as childcare for one of the children would have been much more advanced than is currently the case. This conclusion is similar to that I have reached for the Applicant's employment, his wife's employment and the residential arrangements in Australia assuming he were successful in these proceedings.

1. True it may also be that the Applicant's wife owns a property in Australia in her name and that the Applicant is co-applicant in a home loan for a property in this country. But this is merely evidence of her owning a property here and of him being an applicant for an advance. This goes no higher than her being just another offshore holder of Australian property and of him being a party to an actual or pending loan. Neither of

these two elements rise to the level of indicating any close and continuing association with Australia.17

1. I am satisfied the Applicant has not shown he currently maintains a close and continuing association with Australia or that he is otherwise likely to maintain a close and continuing association with this country into the future.

Section 24(5) of the Act

1. I have found the Applicant does not satisfy either limb of s 21(2)(g) of the Act. This means any application of s 24(5) of the Act falls away and is rendered otiose for present purposes.

1. The Applicant does not satisfy either limb of s 21(2)(g) of the Act. As a consequence, the Applicant is not eligible for the approval of Australian citizenship by conferral. Pursuant to s 24(1A) of the Act this Tribunal must (1) refuse the instant Application and

(2) affirm the decision under review. I so order.

I certify that the preceding forty- one (41) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis

Mr Siva Valliappan (Senior Lawyer) Australian Government Solicitor

Respondent's Statement of Facts, Issues and Contentions