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Liang and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 3782

Tribunal: Senior Member Linda Kirk

On 7 September 2017, the Department for Immigration and Border Protection refused Liang’s application for Australian citizenship by conferral because he did not satisfy the general residence requirements[1] of the Australian Citizenship Act. The applicant was present in Australia for a total of 87 days in the four year period prior to lodging his application and for 29 days in the 12 months preceding the date of application. The applicant applied to the AAT for a review of the decision.

Liang acknowledged that he did not meet the general residence requirement, but sought to rely on the ministerial discretion[2] to treat the absence as though he was present in Australia. However, before the Minister can exercise the discretion, four criteria must be met. It was agreed that Liang satisfied three out of the four criteria but it was disputed that he satisfied the requirement that he had a ‘close and continuing association with Australia’ during his periods of absence from Australia. In deciding whether or not the applicant had a ‘close and continuing association with Australia’, there are 11 factors[3] that need to be considered. These include evidence that the person migrated to and established a home in Australia prior to the period overseas, a long term relationship with an Australian citizen spouse or de facto partner, and regular periods of residence in Australia.

Liang did not satisfy a number of the 11 factors including providing evidence that he had migrated to and established a home in Australia prior to the period overseas. The applicant first arrived in Australia in 1997 and purchased an apartment in 2009 which is leased and managed by a real estate agent. The applicant worked for a multi-national corporation from 2010 to 2012 and frequently travelled internationally. He then moved to Hong Kong in 2012 as his parents were in bad health. Liang moved back to Australia in September 2017 and leased a property in Chatswood in May 2018. Liang’s son started attending school, his wife began to look for work and he became a member of some clubs in his local area. The applicant told the Tribunal that he took every opportunity to visit Australia with his family during the relevant period of absence from Australia. 

The Tribunal found that during the relevant period the applicant’s home was in Hong Kong not in Australia.  It considered whether Liang regularly returned to visit Australia and was satisfied that he did so during the relevant period but those periods were brief. It therefore gave this aspect limited weight in determining whether he had a ‘close and continuing association with Australia’ during the relevant period. Ownership of property was another factor considered by the Tribunal. As Liang had never lived in the apartment he purchased in 2009, the Tribunal found that it was bought as an investment. The Tribunal was satisfied on the evidence that mere ownership of the property does not mean that the applicant had established a home in Australia.

The Tribunal took a cumulative approach when considering the factors relevant to whether the applicant had a close and continuing association with Australia during the relevant period, and most of the factors did not weigh in favour of the applicant. The Tribunal weighed the favourable factors against the fact that the applicant was in Australia for only 87 days out of the 365, and gave less weight to the favourable factors as required by the Citizenship Policy.[4]The Tribunal was satisfied that Liang’s connection with Australia during this time was more consistent with being a regular visitor rather than a resident and accordingly, he did not satisfy the requirement of a ‘close and continuing association with Australia’ during his absences in the relevant period

The Tribunal affirmed the decision to refuse the application for Australian citizenship by conferral.

Read the full written decision on AustLII.

 

[2] Section 22(9) of the Australian Citizenship Act 2007

[3] Khazzam and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 1269 (14 May 2018) at [22]

[4] Paula and Minister for Immigration and Citizenship [2012] AATA 543 at [30]- [31]; Chapter 7A Citizenship Policy.