Attygala and Minister for Immigration and Citizenship
[2008] AATA 625
•17 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 625
ADMINISTRATIVE APPEALS TRIBUNAL No. 2007/4558
GENERAL ADMINISTRATIVE DIVISION Re ASITHA ATTYGALA Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: G D Friedman, Senior Member Date:17 July 2008
Place:Melbourne
Decision: The Tribunal affirms the decision under review.
. . . . . . . . . . . [Sgd]. . . . . . . . . . .
G D Friedman
Senior Member
CITIZENSHIP ‑ application for Australian citizenship ‑ failure to satisfy residence requirements ‑ tennis referee/umpire ‑ whether activities outside Australia beneficial to the interests of Australia ‑ exercise of discretion ‑ whether hardship provision applies
Australian Citizenship Act 2007 s 21, 22(6)
Australian Citizenship (Transitionals and Consequentials) Act 2007 Item 7 of Schedule 3
Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT S91/205, 15 October 1991)
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs
(1993) 30 ALD 447
REASONS FOR DECISION
17 July 2008 G.D. Friedman, Senior Member
1. Asitha Attygala is a Sri Lankan citizen and Australian permanent resident who is a professional referee/chair umpire at tennis tournaments around the world. His application for citizenship was refused because he does not satisfy the normal residence requirements and his professional activities were held to be of insufficient benefit to Australia.
ISSUES
2. The issues before the Tribunal are:
·Were Mr Attygala’s activities outside Australia beneficial to Australia? If not,
·Would Mr Attygala suffer significant hardship or disadvantage if not granted Australian citizenship?
LEGISLATIVE AND POLICY BACKGROUND
3. The Australian Citizenship Act 2007 (the Act) came into operation on 1 July 2007. Mr Attygala lodged his application on 8 March 2007 (prior to the commencement of the Act) but a decision had not been made by 1 July 2007. Under Item 7(2) of Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 (the Transitionals Act) Mr Attygala’s application became a new application which was taken to have been made under s 21 of the Act.
4. Sub-item 7(8)(1) of Schedule 3 of the Transitionals Act provides:
(8)In applying section 22 of the new Act to a new application covered by subitem (2), subsections 22(1) to (2), (4A) and (5A) of the new Act do not apply and the following subsections of section 22 of the new Act apply instead:
(1)For the purposes of section 21, a person satisfies the residence requirement if the person has been present in Australia as a permanent resident for:
(a)a total period of at least 1 year in the period of 2 years before the day the person made the application; and
(b)a total period of at least 2 years in the period of 5 years before that day.
Sub-item 7(8)(4) of Schedule 3 provides:
(4)The Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was engaged in activities during that period that the Minister considers to be beneficial to Australia; and
(b)the person was not present in Australia during that period but was a permanent resident during that period.
5. The relevant policy, which provides guidance in relation to the interpretation and exercise of the powers under the Act, is contained in the Australian Citizenship Instructions (ACI). The Tribunal should have regard to these instructions unless there is good reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634). In relation to the discretion in sub-item 7(8)(4) of Schedule 3 of the Transitionals Act, the relevant paragraphs of the ACI are set out in Chapter 5:
…periods during which the applicant was a permanent resident and was outside Australia engaged in activities beneficial to the interests of Australia may be counted towards residence requirements. This discretion applies to both residence requirements (ie both “2 years in the last 5” and “1 year in the last 2”).
As a matter of policy:
• the applicant must have been personally engaged in activities overseas beneficial to the interests of Australia, not just, for example, the company or organisation for which the applicant worked and
•the applicant must have been engaged in a series of activities, not just a one-off transaction and
•the activities must also be during the relevant period/s under consideration and
•the activities must have been Activities beneficial to the interests of Australia during the relevant period/s. It is not intended that the provision apply where there are no current benefits irrespective of whether benefits may accrue in the future.
Policy also states that the discretion will usually only be exercised if the applicant is in Australia and was either:
•required to work overseas by a Federal, state or territory department, semi-government authority or private employer or
•self-employed and frequent travel abroad was essential to the successful operation of their business, whether for an extended period or on a regular short-term basis or
•engaged overseas in activities of a social, cultural, economic or political nature which are clearly beneficial to the interests of Australia and are widely recognised as such either by:
•the Australian community generally or
•prominent persons associated with the applicant’s field of endeavour (for example, persons engaged in aid programs, artists and entertainers of world standing).
In assessing whether activities are beneficial to the interests of Australia, consider the following:
·It requires “something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest of Australia …and means more than the private interests of the (applicant). The section requires some objective benefit to Australia” (Federal Court in Roberts).
·It requires “something in the nature of activities which achieve recognition of Australia or of Australian achievements or commercial advantage for Australia, or increase the international respect and goodwill for Australia …(it) refers to the public interests of Australia” (AAT in Fraser).
·“The claim that the applicant’s employer has enhanced the reputation of its parent company and Australian companies in general, falls short of demonstrating that the applicant’s activities were beneficial to the interests of Australia” (AAT in McCarthy).
·“There should be a close nexus between the overseas activities and the subsequent benefit to Australia to exercise the discretion” (AAT in Tsui). The benefit should be largely as a result of the applicant’s activities and must not be residual, remote, indirect or speculative (see for example, the AAT case of McCarthy).
6. Sub-item 7(8) of the Transitional Act does not exclude the application of s 22(6) of the Act in the circumstances of the current application. Section 22(6) of the Act provides:
(6)For the purposes of paragraph (1)(c), the Minister may treat a period as one in which the person was present in Australia as a permanent resident if:
(a)the person was present in Australia during that period (except as a permanent resident or an unlawful non-citizen); and
(b)the Minister is satisfied that the person will suffer significant hardship or disadvantage if that period were not treated as one during which the person was present in Australia as a permanent resident.
Section 22(1)(c) of the Act provides:
(1)(c) the person was present in Australia as a permanent resident for the period of 12 months immediately before the day the person made the application.
7. In relation to the hardship discretion, the relevant paragraphs of the ACI are:
Under s22(6) periods of lawful residence, other than permanent residence, can be treated as periods of permanent residence if the applicant can demonstrate that they would suffer significant hardship or disadvantage if those periods were not treated a periods of permanent residence. This section makes explicit reference to s22(1)(c) of the Act. However does not provide that the section does not apply to applicants who are permanent residents on commencement of the Act. The benefit of the apparent inconsistency should therefore be given and the section applied, as appropriate.
People who are permanent residents before commencement of the Act are also subject to the policy that applied immediately prior to commencement of the Act. That means that for people who are permanent residents before commencement of the Act, who are only required to meet residence requirements of two in five and one in two, this discretion would normally be exercised only if the applicant has 12 months continuous permanent residence in Australia prior to the date of application.
Use of this discretion may be appropriate for persons who have become permanent residents of Norfolk Island. Where an applicant satisfies all the requirements under s21 except the residence requirements, but has spent the appropriate periods in Norfolk Island as a temporary resident prior to being granted permanent residence of Norfolk Island, use of this provision would be appropriate.
Guidance on what would constitute significant hardship or disadvantage, including policy which applied immediately prior to the commencement of the Act, is at Attachment B - Significant hardship and disadvantage.
Attachment B provides:
…
People would normally be required to demonstrate some or all of the following circumstances:
•inability to gain employment on the grounds that the employment is restricted to Australian citizens, and that comparable or alternative employment is not reasonably available
•difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons
•academic (eg research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
WERE MR ATTYGALA’S ACTIVITIES OUTSIDE AUSTRALIA BENEFICIAL TO AUSTRALIA?
8. Mr Attygala conceded that at the date of his application for citizenship he had spent 88 days in Australia in the preceding two years, and 110 days in the preceding five years, so he does not meet the residency requirements of the Transitionals Act. However, he told the Tribunal that his activities outside Australia have been beneficial to the interests of Australia and warrant the exercise of the discretion. He stated that he visited Australia on a temporary visitor’s visa several times from 2001, and was granted a Distinguished Talent permanent visa on 6 December 2004. He arrived on 6 January 2005.
9. Mr Attygala told the Tribunal that he is certified as an International Tennis official (referee/umpire) by the International Tennis Federation (ITF) and works full‑time carrying out these duties. He said that he is one of the few officials in the world to hold both referee and chair umpire certification at the Silver level, and the only one in the Asian region. Mr Attygala said that he is one of the few officials to have officiated at all four Grand Slam tournaments. He has officiated at 17 Grand Slam events and the Olympic Games. Mr Attygala stated that for the last two years he has worked 35 to 40 weeks each year, and officials at his level need to undertake international assignments to maintain the high standards expected of them by the ITF. He said that the experience and skills he has gained from overseas assignments improve his international profile, and this benefits Australian tennis. He explained that this in turn will benefit Australia because it strengthens the pool of elite officials. He said that a qualified and competent team of officials is a key requirement and a distinct strength of a country that hosts a Grand Slam tournament, the Australian Open, each year.
10. In relation to his ties with tennis in Australia, Mr Attygala said that he is a member of Tennis Officials Australia and has maintained a solid professional relationship with Tennis Australia for several years. He also emphasised that Australian citizenship would enable him to represent Australia at the highest level on the professional tennis circuit, which would make him proud and would assist his international status and career aspirations.
11. Under cross-examination Mr Attygala agreed that media reports in 2007 about international tennis (Exhibit R1) described him as the official representing Sri Lanka in all four grand slam tournaments and as Sri Lankan umpire Asitha Attygala. he explained that he is identified as Sri Lankan because that is his nationality. He also agreed that when he returns to Sri Lanka to obtain visas for tournaments in other countries he takes the opportunity to visit family and friends.
12. In a written statement dated 17 March 2008 (Exhibit A2) Mr W. Spencer, Chief of Officials, Tennis Australia, supported Mr Attygala’s application. He said that it is essential for Australia, as a Grand Slam nation, to maintain a considerable number of highly-qualified Australian officials to service the Australian Open and to fulfil the requirements of the ITF and other professional tennis bodies, and to support the education and training of officials. Mr Spencer stated that Mr Attygala is a highly qualified and experienced official who needs to travel overseas regularly to develop professionally and to fulfil his ITF certification requirements.
13. Mr Spencer emphasised that to develop an official of Mr Attygala’s stature would take a number of years and involve significant cost and resources. He said that by becoming an Australian citizen Mr Attygala would assist Tennis Australia’s Officiating Development Plan which forms part of the organisation’s program for ensuring that Australia remains a strong tennis-playing nation. He added that good officiating provides benefits not only at the elite level but also helps to develop the sport at the grassroots level by enabling participation by children.
14. In relation to whether a person has engaged in activities outside Australia that are beneficial to the interests of Australia, there must be some objective public benefit to Australia, rather than the private interest of the person (Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 41 FCR 82). In addition, the benefit should be largely as a result of the person’s activities at the time they were undertaken, rather than a time in the future and should not be remote, indirect or speculative (Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447). In Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT S91/205, 15 October 1991) the Tribunal held that activities beneficial to the interests of Australia refers to the public interests of Australia such as activities that will achieve recognition of Australia or increase international respect and goodwill for Australia.
15. In Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 the Tribunal held that the discretion was not intended to be an alternative to the residence requirements, and that some flexibility was required in exceptional circumstances.
16. The Tribunal acknowledges that Mr Attygala is a highly-qualified and experienced tennis official who has been successful in ITF adjudication and has officiated at the world’s most prestigious tournaments. His Distinguished Talent visa recognises his skills. He has contributed to the development of other tennis officials by encouraging them and passing on his knowledge and experiences. However, despite Mr Attygala’s success in the field of professional tennis adjudication, there is no close nexus between his overseas activities as a referee/umpire for Tennis Australia and a subsequent benefit to Australia.
17. In applying the ACI the Tribunal is required to assess the benefit to Australia of Mr Attygala’s activities at the time the activities were undertaken and not some time in the future (Re McCarthy). Consequently, the evidence that the grant of citizenship to Mr Attygala would contribute to the growth in the participation in tennis by children and to Australia’s sporting reputation is of limited assistance to Mr Attygala. Mr Attygala receives remuneration as a contracted official with Tennis Australia, and his activities may properly be characterised as furthering his private interests, rather than of some objective benefit to Australia in the future. The Tribunal takes into account Mr Spencer’s evidence that Australia’s image and reputation in the field of international tennis has been enhanced, but there is no persuasive and objective evidence that Australia’s reputation has been enhanced by the appointment of Mr Attygala to officiate at tennis tournaments around the world, particularly as he was identified, as recently as last year, as a Sri Lankan official.
18. For these reasons the Tribunal finds that at the date of his application for citizenship Mr Attygala was not engaged in activities outside Australia that were beneficial to the interests of Australia. Therefore, the period that Mr Attygala was outside Australia cannot be treated as a period in which he was present in Australia for the purpose of the residence requirements.
WOULD MR ATTYGALA SUFFER SIGNIFICANT HARDSHIP OR DISADVANTAGE IF NOT GRANTED AUSTRALIAN CITIZENSHIP?
19. Mr Attygala stated that he would suffer hardship if citizenship was not granted. He explained that his profession requires his absence from Australia for extended periods, and he has had to refuse assignments because there has been insufficient time to arrange the necessary visas for international tournaments. The ability to travel on an Australian passport would be of considerable practical assistance, as he would no longer be required to return to Sri Lanka to obtain the visas. Mr Attygala emphasised that these difficulties have hindered his career and professional advancement, and have affected the amount of time he has been able to spend in Australia.
20. In applying the ACI, the Tribunal finds that Mr Attygala’s desire to represent Australia as an international tennis referee/umpire does not constitute hardship. Mr Attygala is already a member of an elite group of highly-qualified tennis officials. He has not been refused employment because of a lack of Australian citizenship, and the continuation of his career and his opportunities for advancement do not appear to be affected adversely by his Sri Lankan citizenship. Although having to travel on a Sri Lankan passport may be causing Mr Attygala some inconvenience at times, there is no evidence that a lack of Australian citizenship has prevented him from travelling to other countries. Officiating at tennis tournaments is carried out on a personal basis and does not constitute representing one’s country or being a member of a national team.
21. In all the circumstances the Tribunal finds that Mr Attygala has not demonstrated that he would suffer significant hardship or disadvantage if not granted Australian citizenship. For these reasons, the Tribunal decides that the hardship discretion should not be exercised.
DECISION
22. The Tribunal affirms the decision under review.
I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd)…………….
Clerk
Date of hearing: 3 July 2008
Date of decision: 17 July 2008
Advocate for the applicant: Self-represented
Advocate for the respondent: Mr N Rogers
Solicitor for the respondent: Australian Government Solicitor
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