Alotoom and Minister for Immigration and Multicultural Affairs

[2006] AATA 456

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2006] AATA 456

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/134

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ZAID ALOTOOM

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date  15 May 2006

Date of Written Reasons             25 May 2006

Place  Sydney

Decision   The decision under review is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

CITIZENSHIP  - Applicant did not satisfy the residency requirements for citizenship – not present in Australia since 2002 – issue is whether Applicant engaged in activities outside Australia that are beneficial to the interests of Australia – issue of Minister’s discretion – reason Applicant not in Australia is an economic reason – discretion not exercised – decision affirmed.

LEGISLATION

Australian Citizenship Act 1948 s 13

CASELAW

Minister for Immigration, Local Government and Ethnic Affairs v Roberts 29 ALD 656

Gulati and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 446

Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447

Hou and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 242

Yang and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 176

Taechaubol and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 425

WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

WRITTEN REASONS FOR ORAL DECISION

Senior Member, Mrs Josephine Kelly

1.      This is my decision in the matter of Mr Zaid Alotoom (“Mr Alotoom”) and Minister for Immigration and Multicultural Affairs (“MIMA”). 

2.      Mr Alotoom, who was born in and lives in Jordan, was granted Australian permanent residence status on 4 December 2002. He applied for Australian citizenship on 17 March 2005 which was refused by the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs on 3 January 2006. He seeks the review of that decision. 

Background

3. It is agreed that Mr Alotoom does not satisfy the requirements of section 13(1)(d) and (e) of the Australian Citizenship Act 1948 (“the Act”) for the grant of Australian citizenship as he has not been present in Australia as a permanent resident for a period of, or for periods amounting in the aggregate to not less than one year in the two years immediately preceding the date of the application, and two years in the five years immediately preceding the date of the application.

4.      He also is not and has not been present in Australia since the end of December 2002. 

5. Section 13(1A) of the Act states that:

The Minister shall not grant a Certificate of Australian Citizenship to a person under subsection (1) at a time when the person is not present in Australia unless:

(a)       the person is a permanent resident; and

(b)   the Minister considers that the person is engaged in activities outside           Australia that are beneficial to the interests of Australia.

6. Mr Alotoom satisfies the first precondition of section 13(1A) in that he is a permanent resident.

Issues

7. The first issue in these proceedings is does he satisfy section 13(1A)(b)? That is, am I satisfied that he is engaged in activities outside Australia that are beneficial to the interests of Australia?

8. Then a second issue is, can he rely on the discretion conferred by section 13(4) of the Act relevantly:

For the purpose of the application of subsection (1) in relation to an applicant for the grant of a Certificate of Australian Citizenship:

(a)…

(b) subject to paragraph (a) (which is not relevant here), the Minister may, in the Minister's discretion:

(i)        treat a period during which the applicant

(A)      was a permanent resident;

(B)      was not present in Australia; and

(C)      was engaged in activities that the Minister considers      

beneficial to the interests of Australia

as a period during which the applicant was present in Australia  

as a permanent resident.

(ii)     treat a period ending before the 5 year period referred to in      

paragraph 1(e), being a period during which the applicant was  present in Australia as a permanent resident as a period within that period of 5 years; …

9. The next aspect of section 13(4) which Mr Alotoom relies on is subsection (iv):

if the Minister considers that the applicant would suffer significant hardship or disadvantage if a certificate of Australian Citizenship were not granted to the applicant,- , treat a period during which the applicant was present in Australia otherwise than as a prohibited immigrant, as a prohibited non-citizen, as an illegal immigrant, as an unlawful non-citizen or in contravention of the law of the proscribed Territory as a period during which the applicant was present in Australia as a permanent resident; ...

Mr Alotoom's time in Australia 

10.     Mr Alotoom first arrived in Australia on a tourist visa on 30 June 1997 and left on 17 August 1997, that is, a period of six weeks (T34). He returned to Australia on a student visa in 1999 and stayed for 11 months. On 16 December 2002 he came to Australia as a permanent resident and stayed 11 days. That is the only period he has been in Australia since he received his permanent resident status.

Mr Alotoom's Evidence 

11. Mr Alotoom received a postgraduate law degree during his studies in Australia but it does not entitle him to practice. The activities which he says are beneficial to Australia and satisfy the tests in section 13(1A) and section 13(4)(b) are that he has in effect been practising as a Migration Agent overseas promoting Australia to skilled and student applicants in his region and he travels extensively to do so.

12.     He provided a list of skilled visa applicants whom he has assisted, T27, and said he could have done the same in relation to student visa applicants. He also provided agreements with Australian educational institutions in relation to international recruitment and marketing in support of his contention in relation to students.

13.     He also provided what I might describe as references from, first, the Oval Office for Studies and Research in Jordan which states that it is the official representative of various Australian educational institutions and others in the region, and has had dealings with Mr Alotoom about Australian laws and regulations in relation to students. Secondly, the Jordanian Australian Friends Association attested to Mr Alotoom's voluntary activities in that association. Thirdly, a letter from Mr Greg Hall, Trade Commissioner of Iraq, Jordan and Palestinian Territories for Australia who describes Mr Alotoom's activities in relation to assisting people interested in conducting business in Australia, and Australian business, his activities in relation to skilled migrants and student recruitment.

14.     Mr Alotoom has also said that he is the only person in this region doing what he is doing and that he is well known in relation to his activities of promoting Australia.  For the Minister it was accepted that Mr Alotoom carried out the activities I have summarized, although some of the skilled visa applicants were said to be not within the relevant time period.

15.     It is also relevant to this decision that Mr Alotoom applied for registration as a Migration Agent in Australia in February 2003, that is, shortly after he received his permanent resident status. The decision to refuse that application was affirmed by me in this Tribunal on 27 September 2004. At that time the regulation required that an applicant had to be usually resident in Australia which I found he was not.

16.     When asked during this hearing why he had not come to Australia since that date, that is, 27 September 2004, Mr Alotoom said that it was a legal reason, that is, because he could not carry on his business in Australia because he was not a registered Migration Agent. He also described how he had in the past as a student, and later, applied unsuccessfully for various positions. When I asked him if it was an economic reason he did not come to Australia he said no. 

17.     He also said that he did not come to Australia after my previous decision in relation to his Migration Agent's application because he did not have enough time to make the necessary arrangements and become a Migration Agent before his permanent residency had to be renewed in 2007 which he said was not certain. He also said it was not reasonable to spend 12 months in Australia waiting to apply for his Migration Agent's registration. He said he would not be benefiting Australia or himself if he could not carry on those activities.

My Consideration of Mr Alotoom's Activities

18. The essence of the decision I have to make in relation to section 13(1A) and 13(4)(b) is whether I should exercise a power in each case in relation to an otherwise mandatory requirement of the Act on the basis of Mr Alotoom's activities as described above. I accept that Mr Alotoom has carried out the activities and I accept his express wish to live in Australia, and that he has good will towards this country.

19.     I accept that he delayed coming to Australia after receiving his permanent resident status while he was seeking registration as a Migration Agent, however in my opinion Mr Alotoom's reason for not coming to Australia before or since that date is one that is an economic reason rather than a legal reason. He wishes to continue his business without disruption, which is understandable.

20.     I have been referred to and taken into account numerous cases by both Mr Alotoom and by Mr Palfrey who appeared for the Minister:  Minister for Immigration, Local Government and Ethnic Affairs v Roberts 29 ALD 656, Gulati and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 446, Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447, Hou and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 242, Yang and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 176, and Taechaubol and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 425. I have also taken into account the Australian Citizenship Instructions.

21. I have also had the benefit of comprehensive statements of facts and contentions on behalf of both parties. I note that section 13(4)(b)(i) is a discretion not normally exercised where the person is overseas.

22. I find that the activities Mr Alotoom is undertaking are beneficial to the interests of Australia within the meaning of s 13(1A)(b) and 13(4)((b)(i). However, in all the circumstances of this case including the very short periods of time Mr Alotoom has spent in Australia, particularly since he has had permanent resident status, I do not consider that this is a case where the mandatory requirements of section 13(1)(d) and (e) should be set aside on the basis of the discretion conferred by 13(4)(b).

23.     In relation to the question of a hardship which Mr Alotoom has said that he would suffer if the discretion is not exercised, I am not persuaded that that is the case. Mr Alotoom has, to his great benefit, a successful business in Jordan which he may continue.

Decision

24.     Accordingly, for the reasons I have just given I affirm the decision.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  12 May 2006
Date of Decision  15 May 2006
Date of Written Reasons          25 May 2006
Applicant Representative         Self Represented
Solicitor for the Respondent     Clayton Utz Lawyers