Wang and Migration Agents Registration Authority [2003] AATA 1189 (10 October 2003)

Last Updated: 25 November 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1189

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2003/945

)

GENERAL ADMINISTRATIVE DIVISION

)

Re

YUHONG (JOHN) WANG

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal

Senior Member M D Allen

Date 10 October 2003

Place Sydney

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2003/945

GENERAL ADMINISTRATIVE DIVISION	)
	Re	YUHONG WANG

Applicant

And

MIGRATION AGENTS REGISTRATION AUTHORITY

Respondent

DECISION

Tribunal

Mr MD Allen, Senior Member

Date 10 October, 2003

Place Sydney

Decision

For the reasons given orally at the conclusion of this hearing, the Tribunal affirms the decision under review.

(Sgd) Mr MD Allen

.........................

Senior Member

CATCHWORDS

MIGRATION AGENTS - application for registration refused as Applicant not usually resident in Australia - usual residence a matter of fact and degree.

Migration Act 1958 - section 294

Migration Regulations 1994 - Regulation 1.03

Hafza v Director-General of Social Security (1985) 6 FCR 444

Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116

Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241

Federal Commissioner of Taxation v Miller (1946) 73 CLR 93

Gauthiez v Minister for Immigration and and Ethnic Affairs (1994) 53 CLR 512

Re Taylor; ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194

Federal Commissioner of Taxation v Applegate (1979) 79 ATC 4307

Re Wong v Minister for Immigration and Multicultural Affairs [2002] AATA 54

REASONS FOR DECISION

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Signed: (K. Wong)

.........................................................................................................................

Associate

Date of Hearing 10 October 2003

Date of Decision 10 October 2003

Solicitor for Applicant Mr B. Slater, Brett Slater Solicitors

Solicitor for Respondent Ms E. Warner, Australian Government Solicitors ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N03/945

WANG and MIGRATION AGENTS

REGISTRATION AUTHORITY

By MR M.D. ALLEN, Senior Member

SYDNEY, FRIDAY, 10 OCTOBER 2003

MR ALLEN: By application made the 6th day of June 2003, the applicant sought review of a decision by the respondent made the 8th day of May 2003 and notified by letter dated 21 May 2003 not to renew his registration as a migration agent. The refusal by the respondent was based on its finding that the applicant did not comply with section 294 of the Migration Act (1958) as amended. That section reads:

An applicant must not be registered unless he or she is (a) an Australia citizen or (b) an Australian permanent resident within the meaning of the regulations.

Regulation 1.03 of the Migration Regulations (1994) reads inter alia:

Australian permanent resident means a non citizen who being usually resident in Australia is the holder of a permanent visa.

There is no dispute in this matter that the applicant has permanent residency in Australia. The question is, is he usually resident in Australia? An argument was submitted by the applicant that the Migration regulations 1994 are not the applicable regulations but rather the reference in section 294 to the regulations refers to the Migration Agents Regulations 1998.

Section 504 of the Migration Act (1958) gives the power to make regulations under the Act. Such a power would encompass both the Migration Regulation 1994 and the Migration Agent's Regulations 1998. However, when the Act speaks of "the regulations" without more, I understand it to be referring to the Migration Regulations 1994. If the Migration Agents Regulations were intended nothing would have been easier than for the parliament to have said so specifically. After all, the Migration Act is subject to continual amendment.

The phrase "usually resident", is not defined in the Act or the regulations. That phrase and like phrases referring to what or where a person's residence is have received judicial attention in various cases. As his Honour, Wilcox J said in Hafza v Director-General of Social Security 6 FCR 444 at 449 there is a plethora of decisions arising in various contexts but predominantly matrimonial causes and revenue cases relating to the legal concept of residence.

As his Honour went on to say in that case:

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Physical presence and intention will co-incide for most of the time. The test is whether the person has retained a continuity of association with the place together with an intention to return to that place and an attitude that that place remains home.

The most recent case to consider the analogous phrase "usually resides", was the Full Court, the Federal Court in Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116. At paragraph 17 the court said:

It is not contended by either party before this court that the Tribunal erred in formulating the test which should be applied to determine under regulation 1.15 to aid where the appellant usually resides.

In Koitaki Para Rubber Estates Ltd v the Federal Commissioner of Taxation (1941) 64 CLR 241 to which the Tribunal referred, Williams J with whose reasons Riche ACJ and McTiernan J expressed agreement made the following observation that is pertinent to this case at 249:

The place of residence of an individual is determined not by the situation of some business or property which he is carrying on or owns but by reference to where he eats and sleeps and has settled or usual abode. If he maintains a home or homes, he resides in the locality or localities where it or they are situate but he may also reside where he habitually lives, even if this is in hotels or on a yacht or some other place of abode.

Subsequent to Koitaki Para Rubber Estate supra, Latham CJ said in Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at 148, 149:

I should have thought that there was no doubt that a man resided where he lived and I do not think that there is any interpretation of the word "reside" by the courts which makes it impossible to apply the ordinary meaning of the word "reside" in the present case.

In Scargill supra, the court referred to the decision of Gummow J in Gauthiez v Minister for Immigration and Ethnic Affairs 53 FCR 512. At 519 his Honour said:

The meaning ordinarily given to the phrases "resides", "usually resides" and "ordinarily resides" is such as to make the result in a given case depend largely upon matters of fact and degree.

Lockhart J in Re Taylor Ex Parte Natwest Bank 37 FCR 194 said at page 198 in reference to whether a debtor was ordinarily resident in Australia for the purposes of the Bankruptcy Act:

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To say that a person is ordinarily resident in Australia must mean something more than that he is resident in Australia. The word "ordinarily" connotes a comparison, a measure of degree. A person may have more than one residence but he is not necessarily ordinarily resident in each of them. The question must be determined for the purposes of section 43 of the Act at a particular time. One must ask the question whether at that time the person was ordinarily resident in Australia. The concept of ordinary residence for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person's life, he regularly or customarily lives. There must be some element of permanence to be contrasted with a place where he stays only casually or intermittently. The expression "ordinarily resident in" connotes some habit of life and is to be contrasted with a temporary or occasional residence.

As Lord Warrington said in Levine at 232:

"Ordinarily resident" means according to the way a man's life is actually ordered. The concept of "ordinarily resident" cannot be stated in definite terms. Each case must be determined on its facts and after taking into account all relevant matters.

I would only refer, for completeness sake, to what the Federal Court said in a case bearing some superficial resemblances to the present matter, namely, Federal Commission of Taxation v Applegate 79 ATC 4307. That case concerned a solicitor who had gone to Vila in the New Hebrides to set up a branch of the firm in which he was a partner. He was apparently in Vila for some two years, before returning to Australia. Reading from the headnote, his Honour Franki J said:

Permanent place of abode outside Australia means something less than a permanent place of abode in which the taxpayer intends to live for the rest of his life. The inquiry whether there is a permanent place of abode outside Australia is an objective one and as to the length of time he will reside in a place outside Australia is no more than one relevant factor to be taken into account.

His Honour Fisher J said, and again, from the headnote:

Permanent place of abode means the taxpayer's fixed and habitual place of abode. Material factors for consideration are the continuity or otherwise of the taxpayer's presence. The duration of his presence and the durability of his association with the particular place. The taxpayer's intention to make his home for the time being, in his place of abode outside Australia is an important element in characterising that place of abode as his permanent place of abode.

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I should now refer to what is the evidence in this matter. Exhibit A2 is a statement by the applicant which was largely not controverted by the respondent's representative. In that statement the applicant says that he first came to Australia in 1990. Since then he spent approximately half his time in Australia and that he holds a subclass 155 Permanent Residence Visa valid for re-entry into Australia until 6 August 2008. He married in 1991 in Australia and his wife is now an Australian citizen. I note the evidence is that the wife has spent periods in China with the applicant and also visiting her relatives in China.

He apparently obtained a Master of Laws Degree from Sydney University and after working for a firm of Sydney Solicitors in 1996 was, to use his term, head hunted to work as a lawyer and consultant in China for a Chinese law firm. He continues to work for that law firm, which is known as Shuang Cheng Attorneys-at-Law and the firm is situated in Beijing. Attached to that firm is another business Shuan Cheng Consultants. It would appear that there is also another company, SC International Consulting China Company Limited, which is owned by the partnership of Shuang Cheng. The applicant goes on to state that in January 2002, Shuang Cheng decided to apply for a new kind of licence regarding to migration matters in and out of China.

It became necessary to obtain this sort of licence to provide migration assistance to Chinese nationals and the consulting firm was incorporated. Following its incorporation, there was a large increase in migration business conducted by the law firm. He was, and continued to be, the partner in the Shuang Cheng Attorneys-at-Law firm responsible for managing its migration work. I understood his evidence to be that he became a full partner in that firm in 2002 and, as he said in his statement, and also his evidence, February 2002, he entered into an agreement with the other partners in the law firm that he would continue to work in the law firm for a further five year period.

In January 2002, the applicant set up a migration consulting business in Sydney, known as SC International Consulting Australia Pty Ltd. The applicant said that he owned part of that business and the rest was owned by the Beijing legal firm of which he was a partner. At document T33 page 140 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is a letter from a firm of accountants which speaks of the incorporation of the company and states that the applicant owns 80 per cent of the paid up capital of the Australian company.

The applicant has other business ties in China, for example, at document T19 page 97, there is a letter from the President of the Australia China Chamber of Commerce and Industry of New South Wales. That letter reads, inter alia:

John Juhong Wang has been associated with the Chamber since 1995. He acted as our chief representative in Beijing for four years during the period from 1997 to 2001.

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The letter goes on to state:

We are of the opinion that John contributed and continues to contribute significantly to Australia China business relations.

When in China, the applicant resides in a unit owned by his father. In other words, he is not living in a hotel or some other transitory place of residence.

Exhibit R3 is a record of movements in and out of Australia by the applicant. See also document T17. For example, on 2 February 2000 the applicant arrived in Australia from Mainland China and departed on 19 February for China, a stay of some 17 days. His next arrival in Australia was on 22 January 2001 when he stayed for nine nights. He arrived in Australia on 5 December 2002 and stayed for two weeks and has been back three times in 2003 for periods of two weeks at a time, he thinks.

At document T18 is a record of the applicant's periods in Australia as at 30 July 2001. Part of that file note reads that the applicant as at that date had been in Australia for a total of 26 days within the last two years. As stated however the applicant's wife is ordinarily resident in Australia it seems although visiting her husband from time to time.

They have one child, a daughter who is attending a pre-school at Hornsby. The applicant owns a strata title unit at Hornsby near Sydney where his wife and child reside and there are other relatives in Sydney. The applicant says at paragraph 21 of his statement:

For the financial security of my family Alice and I have agreed that I should continue to spend time in China working at the Shuan Cheng business. Our permanent home remains Hornsby and naturally I stay there whenever I am in Australia. I do not own a home anywhere else. When the family finances are strong enough I propose to spend less time in China. Although my retirement years are some distance in the future I intend to spend them with Alice and Naomi in Australia. If the performance of the Sydney business improves sufficiently it would be possible for me to spend most of my time in Sydney. The home at Hornsby is my only permanent home and I do not have an intention to make a permanent home anywhere else.

In his statement the applicant candidly admits that he and his wife have agreed that for the financial security of the family he should continue to spend time in China working. I find it intriguing that he says:

Although my retirement years are some distance in the future I intend to spend them in Australia.

The inference being that his current intention is to devote his time to the China-

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based businesses of which he is a partner. This is corroborated by his statement that if the performance of the Sydney business improved sufficiently it would be possible for him to spend most of his time in Sydney. In other words, it is only when and if the Sydney business improved that he will consider spending most of his time in Sydney. At present he is, as stated above, contracted for five years to the Chinese legal partnership.

The date for assessing the applicant's claim to be usually resident in Australia is the date at which the decision under review was made. See re Wong v Minister for Immigration and Multicultural Affairs, 2002 AATA 54. I am satisfied that at the time the decision under review was made the applicant was usually resident in China. That is where he obviously had permanent accommodation, it is where he had a business in which he was actively engaged. He had intermittent returns to Australia but not for long periods and in 2002 he made a commitment to his Chinese partners to work in the China based legal and migration practice for another five years.

The cases cited above clearly state that where a person is usually resident is a question of fact and degree. In this case the fact unequivocally point to the applicant being usually resident in China and the decision under review is affirmed.

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