Cotton and Minister for Immigration and Multicultural and Indigenous Affairs

[2007] AATA 1029

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1029

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1224

GENERAL ADMINISTRATIVE  DIVISION		)
Re		YOICE COTTON

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date of Decision  12 January 2007

Date of Written Reasons              30 January 2007

Place  Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and in lieu thereof, the Tribunal substitutes its decision that the Applicant and her children are granted Australian Citizenship.

(Sgd) M.D. ALLEN
  ...........................................
  Senior Member

CATCHWORDS

CITIZENSHIP – Applicant the holder of a Protection Visa – Minister’s discretion – Tribunal satisfied that discretion should be exercised in the Applicant’s favour – decision under review set aside and substitutes the Tribunal’s decision that the Applicant and her children are granted Australian Citizenship.

Australian Citizenship Act 1948 – paras. 13(4)(iv), 13(9)(c)

Australian Passports Act 2005 – ss 9, 10

Re Dainty v Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259

REASONS FOR DECISION

30 January 2007 Senior Member M D Allen

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 Applicant and Respondent of a copy of the decision that was in fact made, the Respondent pursuant to sub-section 43(2A) of the Administrative Appeals 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 thereunto 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 paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:     [Amanda Aitken]            .....................................................................................

Associate

Date of Hearing  12 January 2007
Date of Decision  12 January 2007
Date of Written Reasons                   30 January 2007

Representative for the Applicant      Mr D Cotton

Solicitor for the Respondent              DLA Phillips Fox

DRAFT DECISION  [11.59am]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2006/1224
By MR M.D. ALLEN, Senior Member
COTTON and MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SYDNEY, 12 JANUARY 2007

MR ALLEN:   By application made the 18^th day of September 2006, the applicant seeks review of a decision by a delegate of the respondent to refuse her application for Australian Citizenship. The applicant is the holder of a Protection Visa granted pursuant to a decision of the Refugee Review Tribunal on 23 January 2006. Although in the initial application to this Tribunal the applicant seemed to emphasise the requirements of paragraph 13(4)(iv) of the Australian Citizenship Act 1948, a ground of application also exists under paragraph 13(9)(c), which reads inter alia, that:

The respondent may grant citizenship to a person who is a permanent resident and the spouse of an Australian citizen.

I intend to consider this matter pursuant to this ground. 

On the face of it, the discretion to grant Australian citizenship pursuant to paragraph 13(9)(c) is unfettered. However, guidelines have been issued, namely the Australian Citizenship Instructions. Before examining those Instructions, I will turn to the applicant’s personal circumstances. The applicant was born in Indonesia and is of the Christian faith. She first came to Australia, arriving on 8 January 2004, in order to pursue a Master’s degree at Monash University. I understand that her expertise is in the teaching of English as a foreign language.

Prior to her arrival in Australia she had been married to an Indonesian citizen in 1996.  However, that marriage ended in divorce.  There were two daughters of that marriage.  Subsequent to coming to Australia she made the acquaintance of Mr Douglas Cotton and a relationship began.  They began to live together in June 2004.  They were married on 27 August 2005 and there has been a child of that marriage. 

It would appear that whilst in Indonesia the applicant was subjected to domestic violence and that was the ground upon which the Refugee Review Tribunal made its decision.  As the applicant points out in her application to this Tribunal:

As advised by the Department of Immigration in their letter accompanying my protection visa approval, any attempt on my part to return to Indonesia or even to travel elsewhere on an Indonesian passport would render me in breach of international regulations regarding protection visas.  My protection visa would become void and Indonesian authorities would almost certainly keep me in Indonesia.

In its statement of Facts and Contentions, the respondent also stated:

The Respondent contends that the applicant would not be able to travel to anywhere in Indonesia because the Convention would cease to apply if she ‘voluntarily re-avails’ herself of the protection of her country of nationality (see article 1C(1) of the Convention).

Of course, those provisions would not apply were the applicant an Australian citizen.  It would appear also that her Indonesian passport has now expired and she is not able to obtain another Indonesian passport without returning there.  But in any event, there would be little point in that as she would lose the benefit of her Protection Visa. 

The main ground relied upon by the applicant is that she feels inhibited in returning to Indonesia to see her parents, in particular her father, without the protection of an Australian passport. The respondent submits, and I take it from what I heard today the applicant substantially agrees, that travel overseas could be undertaken with a Convention Travel Document granted pursuant to sections 9 and 10 of the Australian Passports Act 2005. However, as pointed out earlier, a return to Indonesia without being an Australian citizen would deprive her of her refugee status and permanent status in Australia. In addition, it was submitted that not all countries recognise Convention Travel Documents.

The applicant’s apprehension regarding a return to Indonesia is consistent with the grant of her refugee status.  The decision of the Refugee Review Tribunal recognised that she was at the risk of domestic violence from her former husband and he and his family were likely to take steps to seize the two children of that marriage currently in the custody of the applicant and her now husband.  Her parents have travelled to Australia but could not do so again as they are elderly, speak no English and found the journey stressful.  Although not currently ill, her father has been in ill health and she would like to be able to go and visit him if he again falls ill or is mortally ill.

The application for a Protection Visa was made on 29 July 2005.  As stated, the applicant has been in Australia since January 2004 except for a short period.  She is married to an Australian citizen and they have a child.  She has apparently integrated into Australian society and her application for citizenship is supported by her local Christian congregation. 

The Citizenship Instructions require that for the exercise of a discretion pursuant to paragraph 13(9)(c) of the Australian Citizenship Act it must be shown that:

1. the applicant has resided in Australia for 12 months before the application; and
2. to deny the grant would occasion to the applicant – and I interpose, not some other person – severe hardship (although the applicant’s husband referred to compassion, compassion does not equate to severe hardship). 

In Re Dainty v Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259, at 266, his Honour Davies J sitting as President of this Tribunal discussed the place of policy in administrative decision-making. His Honour said:

The Tribunal is not bound to apply a practice or a policy adopted by the decision-maker … However, as Brennan J said in Re Drake v The Minister for Immigration and Ethnic Affairs (No. 2), “inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.”

As was demonstrated in Re Drake (No. 2), there are frequently very good reasons why the Tribunal should adopt and apply a relevant policy, particularly one which is appropriately formulated in the political context and which has been enunciated by a Minister of State.

I accept that in the exercise of discretions under the Australian Citizenship Act, the Tribunal ought generally to apply guidelines or policies which have been established by the Minister of State for Immigration and Ethnic Affairs. Such policies can only be adopted by the Minister. He has the experience and advice and the power to formulate such policies and he is able to take responsibility in parliament should the policies be found wanting.

But to say that is not to say that the Tribunal ought to treat policy as more than policy.  Policy is not a legislative prescription and though in many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has been laid down.

As was said in Re Aston, policy is not law.  A statement of policy is not a prescription of binding criteria.  By conferring a discretion upon the decision‑maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.

(Citations omitted)

In the applicant’s case, taking into account the following:

1. her marriage and the issue of that marriage;
2. her Christianity, which I note is a minority religion in Indonesia;
3. her skills in English which indeed are at a Master’s level;
4. the length of time she has spent in Australia;
5. that she applied for refugee status in July 2005 which was granted, and as I read the decision of the Refugee Review Tribunal, there were no intervening factors between application and decision;
6. that there will be hardship to her by having to remain in Australia if her father becomes ill;
7. that to all intents and purposes she has a real commitment to Australia and has integrated within the Australian community; and
8. that there are genuine reasons for seeking the protection of Australian citizenship (I again refer to the decision of the Refugee Review Tribunal).

My opinion is the discretion should be exercised in her favour.  The decision under review will therefore be set aside and I substitute the Tribunal’s decision that the applicant is entitled to the grant of Australian Citizenship.

RECORDED  :  NOT TRANSCRIBED

MR ALLEN:   The decision so far as it relates to the children will also be set aside and they are entitled to the grant of Australian Citizenship.
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