Baghalan Aval and Minister for Immigration and Citizenship
[2008] AATA 59
•22 January 2008
ADMINISTRATIVE APPEALS TRIBUNAL N° 2007/2765
GENERAL ADMINISTRATIVE DIVISION
Re: HOSSEIN BAGHALAN AVAL
Applicant
And:MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
CORRIGENDUM [2008] AATA 59
Tribunal: Regina Perton, Member
Date:6 March 2008
Place:Melbourne
Member Perton made a decision with reasons for decision under s 43 of the Administrative Appeals Tribunal Act1975 (the Act) on 22 January 2008.
The Tribunal was advised that there is an error in the paragraph numbering in the reasons for decision dated 22 January 2008.
In accordance with s 43AA(1) of the Act, the Tribunal directs that the Registrar delete the text of the decision and reasons for decision dated 22 January 2008 and replace with the attached decision and reasons for decision.
(sgd) Regina Perton
Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 59
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2765
GENERAL ADMINISTRATIVE DIVISION ) Re HOSSEIN BAGHALAN AVAL Applicant
And
MINISTER FOR IMMIGRATION
AND CITIZENSHIP
Respondent
DECISION
Tribunal Regina Perton Date22 January 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
CITIZENSHIP ‑ residence requirements - discretion regarding temporary residence - whether applicant would suffer significant hardship or disadvantage – decision affirmed.
Australian Citizenship Act 1948 s 13(1A), 13(4)
Acts Interpretation Act 1901 s 8
Australian Citizenship Act 1948 ss 13(1)(d), 13(1)(e), 13(4)(b)(iv), 52A
Australian Citizenship Act 2007
Australian Citizenship (Transitionals and Consequentials) Act 2007 Schedule 3
Drake v Minister for Immigration and Ethnic Affairs(No.2) (1979) 2 ALD 634
Esber v Commonwealth (1992) 174 CLR 430
REASONS FOR DECISION
22 January 2008
Regina Perton, Member
1. Hossein Baghalan Aval was born on 22 September 1977 in Iran. He first arrived in Australia on 30 June 2003 on a temporary residence visa. He toured as a circus performer with Silvers Circus. On 29 March 2006 Mr Aval was granted a Distinguished Talent (Residence) (Class BX) (subclass 858) visa. Mr Aval applied for citizenship on 4 April 2007. The application for citizenship was refused on 29 May 2007. Mr Aval lodged an application for review of the decision with the Tribunal on 27 June 2007.
2. Mr Aval does not satisfy the normal residence requirements for citizenship which are set out in s 13(1) of the Australian Citizenship Act 1948 (the Act). In particular, he does not satisfy the requirements of ss 13(1)(d) and (e), which provide that the person seeking citizenship must have been present in Australia as a permanent resident for minimum prescribed time periods. It is common ground between the parties that Mr Aval has not met these requirements.
3. When a person who has applied for citizenship does not meet the residency requirements of s 13(1) of the Act, there is a limited discretion available that may result in the person qualifying despite their failure to satisfy residency requirements.
4. The issue before the Tribunal is whether Mr Aval would suffer significant hardship or disadvantage if not granted Australian citizenship at a date earlier than that he would normally qualify.
What is significant hardship or disadvantage?
5. Section 13(1) of the Act provides that Australian citizenship may be granted to a person who has been in Australia as a permanent resident for not less than one year during the 2 years immediately preceding the date of application (s 13(1)(d)); or not less than 2 years during the 5 years immediately preceding the date of application (s 13(1)(e)).
6. Section 13(4)(b) of the Act gives the Minister discretion to grant citizenship when the residence requirements are not met:
(4) For the purposes 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), 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;
…
(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 entrant, as an unlawful non-citizen, or in contravention of a law of a prescribed Territory, as a period during which the applicant was present in Australia as a permanent resident; or
…
7. Chapter 4 of the Australian Citizenship Instructions (the ACI) provides guidance on the application of s 13 of the Act. The Tribunal is required to have regard to these Instructions unless there are cogent reasons for not doing so (Drake v Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634).
8. The relevant paragraphs of the ACI are 4.3.33, 4.3.34 and 4.3.36:
4.3.33As a matter of policy, this discretion would usually be exercised only in one of the following situations of hardship or disadvantage:
·the applicant can demonstrate that they have been refused employment solely on the grounds that the employment is restricted to Australian citizens and that alternative sources of employment are not reasonably available to them.
·the applicant would be excluded from travelling internationally because they cannot obtain a passport or because they are excluded from travelling with immediate Australian family or
·the applicant would not otherwise be eligible to represent Australia in an international forum or be selected to represent Australia in a national representative team/group:
An applicant should be of international standard to satisfy this criterion.
If citizenship is a prerequisite to selection for a national team, the applicant should be able to demonstrate that their selection depends solely upon being granted citizenship.
4.3.34This discretion enables periods of temporary residence in Australia to be counted as periods of permanent residence if the applicant would otherwise suffer significant hardship or disadvantage.
§The applicant still has to satisfy the normal residence requirements of “2 years in 5” and “1 year in 2” and must be a permanent resident at the time of application.
§The discretion would normally be exercised only if the applicant has 12 months continuous permanent residence in Australia prior to the date of application.
§The discretion is available only for periods spent lawfully in Australia.
§This discretion is not available for periods when the applicant was in contravention of a law of a “prescribed Territory”.
§See 4.3.33 for guidance on hardship or disadvantage.
…
4.3.36 Some applicants, particularly refugees, seek the exercise of this discretion on the grounds of difficulties in obtaining non-Australian travel documents or a preference to travel with the “protection” of an Australian passport. This would not, however, normally justify use of the discretion…
9. On 1 July 2007 the Australian Citizenship Act 2007 (the 2007 Act) came into effect. Schedule 3 of the Australian Citizenship (Transitionals and Consequentials) Act 2007 provides transitional arrangements for matters that commenced before the operation of the 2007 Act. Item 10 provides that despite the repeal of the previous Act, section 52A of the previous Act (from which the Tribunal derives its jurisdiction) continues to apply in relation to a decision made under that Act, as if that repeal had not been made. Section 8 of the Acts Interpretation Act 1901 provides that a repealed Act shall not affect any accrued rights under the repealed Act. Therefore, Mr Aval’s application, which was lodged under the previous Act, is to be determined according to that Act (Esber v Commonwealth (1992) 174 CLR 430).
Would Mr Aval suffer severe disadvantage or hardship if he were not granted Australian citizenship?
10. In a submission dated 17 March 2007, accompanying his application for citizenship, Mr Aval stated:
Due to the nature of my work, as an international acrobatic performer, it is extremely difficult for me to fulfil the application requirement of sustained residency in Australia for a two year period. Also I am working with Australian companies that travel the world and it is both difficult for the companies to acquire visas for me as often I am the only non-Australian and often I miss opportunities to work regularly with these companies.
11. In a submission dated 17 September 2007, Mr Aval stated:
I am an international Acrobatic artist. Since I have chosen Australia home, I have sought employment with relevant Australian entertainment companies. Most of these companies represent Australia worldwide. Shows and productions are usually rehearsed and produce in Australian before they go on tour, which usually takes a few months.
These companies looking for recruiting committed and reliable Australian artists, those who can travel with the show with no hassles and commit to stay with the show until termination of season.
Once the show hits the road they cannot afford to lose or substitute any member. It is because each artist has different role in the show that was rehearsed for number of months. It is almost impossible to change artists, especially when the show is touring overseas and travel country to country.
When the show travels globally they have to apply for visa for all the crew for the next destination while already in some other country.
Providing travelling documents for a big group of people is a complicated and time-consuming process and it must be done on time for all members at the same time whereas all the members are interdependent to one another.
In my case I am the only member of troop who is not held Australian passport and subsequently the period of visa approval for me takes much longer time than others, Longer than the appointed date of opening of the show for the next destination. In result of that, I have lost many opportunities of employment in the past. In fact these companies cannot afford such a risk to hire someone who cannot obtain visa on time, therefore they are not interested to employ me in the first place.
I was unofficially advised by some of these companies to apply for citizenship and get Australian travelling documents to solve this problem. I have been trying to encourage them to write in support of my citizenship by explaining this dilemma but they are reluctant to do so because they are afraid of being accused of discrimination for not employing non-citizen Australian residents.
I have forced out of business in the prime of my career time, career that I have inherited from my family of four generation. I must mention that acrobatic performance is a significantly physical feat. It is limited to age, level of fitness and must be done continuously without discontinuation. Being away from stage has detrimental effects on skills and confidence of any artist. It has been more than a year since I have been away from stages and it has had such a negative impact and significant hardship in my life. I am dealing with serious financial, occupational and emotional problems, which is harmful for my career and my future.
….
12. In oral evidence, Mr Aval said that he performed with Silvers Circus for three years. He said that a circus travelling through Australia needs to change its performers from time to time to present something new which was why his contract ended. He had previously performed overseas with other Iranians through a company based in Korea. He performed in Iraq, Malaysia, Hong Kong and Taiwan.
13. Mr Aval said that he has a performer friend who is Ethiopian who has similar issues to his. She was granted citizenship less than two years after she gained permanent residency and encouraged him to apply for citizenship early. Mr Aval expanded on the information in the submissions he made to the Tribunal. He said it is difficult to maintain your skills if you are not performing. He said that he will soon be beyond his peak performing age. He uses the facilities at the National Institute of Circus Arts for training but is unable to afford some of the specialist training he would like. Mr Aval said that circus performers need to travel internationally to maintain their standards and to perform given the limited opportunities within Australia. He said that his skill in balancing on daggers and doing a headstand on top of the head of the person below without any support is unique. Mr Aval showed the Tribunal photographs of his performances which included hand-balancing. He and his partner also held a record in the Guinness World Records for the longest sword to sword balancing act. They had broken his uncles’ record for that feat. There is also material on Mr Aval’s website which the Tribunal perused. There is no doubt that he is a highly skilled performer.
14. Mr Aval conceded that he has visited several countries on his Iranian passport including the United States of America. Mr Aval arrived in Australia on 30 June 2003 as a temporary resident and departed Australia for a month in late 2004 to visit his family in Iran. He was granted permanent residency on a distinguished talent visa on 29 March 2006. He left Australia on 9 June 2006 returning on 10 November 2006. Mr Aval said that he had visited family in the United States. They included his grandmother and uncles from his mother’s side who were also circus acrobatic performers and had left Iran after the 1979 revolution. His mother had also been a circus performer.
15. Mr Aval said that he applied for a visitor visa for the United States some 10 months in advance. The Interpol clearances took some time to come through. Mr Aval said that he spent much of the time in the United States in Las Vegas where his uncles perform. He said he left Australia for some five months to recover from an injury that he had sustained which required surgery, and to rebuild his act with the aid of his uncles because his previous performing partner had decided to retire.
16. Mr Aval said that it now takes longer to obtain visas as an Iranian national since the events of 9/11. However, he conceded that he had not been refused entry to any country he had sought to enter.
17. Mr Aval provided letters of support with his application for citizenship. Mr Rod Parnall, Executive Officer, Student Learning Division of the Office of Learning and Teaching, in an undated letter, hailed Mr Aval’s unique skills and expressed the need for Mr Aval to be able to travel overseas to hone his skills. He cited Mr Aval’s valuable contribution to Australian arts, in entertaining and contributing to the training of young performers. He described Mr Aval as a man of great integrity who is sincere, caring and accepting of his responsibilities, that he will make an outstanding contribution to Australia and that he is proud and honoured to know him.
18. In a letter dated 26 March 2007, Georgina Wu, Executive Producer of Art Orient Entertainment Co Ltd based in Taiwan, stated that she has known Mr Aval for more than six years through his previous collaboration with her company. She indicated that Mr Aval needs to be able to travel regularly overseas to improve and enhance his skills. She praised him as, amongst other things, honourable, hard-working, professional and enthusiastic. She hoped that his regular need for travel would not prevent him from assuming Australian citizenship.
19. Diane Heaton, Director of Friedrichs Promotions Pty Ltd based in Sydney, has employed Mr Aval as a performer on many occasions. In a letter dated 26 March 2007, she described him as a top professional acrobatic performer whose talents are unmatched by others in Australia. She stated that due to the limitations for his type of employment in Australia, he needs to travel overseas but he is presented with difficulties in not being able to arrange travel with other Australian artists who hold Australian passports.
20. Mr Aval said that there is now an international circus performance competition that he would like to compete in as an Australian citizen. The Tribunal notes that it is described at An article hails the achievements of an Australian trio who won a bronze medal at the International Acrobatic Art Festival of Wuhan, China, which was held in November 2006 and in which 24 teams from ten countries competed. Other international competitions in which NICA graduates have participated are also cited.
21. The Tribunal accepts that Mr Aval is, indeed, a distinguished talent. He is held in high esteem by persons involved in circus training and performing. Mr Aval’s work opportunities may well be assisted if he is able to travel on an Australian passport. However, there is no evidence that his future as a performer is reliant on obtaining early citizenship. He has not been able to provide, somewhat understandably, evidence that he has missed out on positions because he is not an Australian citizen. There is also no evidence that government grants to arts or sporting organisations are dependent on supporting only Australian citizens in their activities.
22. There is no dispute that Mr Aval does not satisfy s 13(1)(d) or 13(1)(e) of the Act. Under the transitional provisions in the current Act, it appears that he will be eligible for citizenship later this year. The Tribunal, in applying the policy set out in paragraphs 4.3.33, 4.3.34 and 4.3.36 of the ACI, notes that Mr Aval has not been able to demonstrate that he has been refused employment because of a lack of citizenship, or that he is prevented from travelling to other countries. There is no evidence that he is prevented from representing Australia in an international forum or a national representative team or group.
23. Although having to travel on an Iranian passport may well be causing Mr Aval some hardship or disadvantage, the hardship or disadvantage is not the result of a refusal to grant him Australian citizenship, and is not significant hardship or disadvantage. For these reasons the Tribunal decides that the discretion contained in s 13(4) of the Act should not be exercised to grant him citizenship.
DECISION
24. The Tribunal affirms the decision under review.
I certify that the twenty-four [24] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Ursula Noyé
Clerk
Date of hearing: 3 December 2007
Date of decision: 22 January 2008
Advocate for applicant: Self-represented
Advocate for respondent: Ms K MillerSolicitor for respondent Australian Government Solicitor
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