Goddard and Minister for Immigration and Multicultural Affairs

[2006] AATA 896

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 896

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  A2006/175

GENERAL ADMINISTRATIVE DIVISION		)
Re		GRAHAM GODDARD

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal   J.W. Constance, Senior Member

Date of Oral Decision   22 September 2006

Date of Written Reasons   19 October 2006

PlaceCanberra

Decision   The decision under review is set aside and in substitution it is decided that Mr Goddard's application for Australian citizenship be granted.

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

J.W. Constance, Senior Member

CATCHWORDS

MIGRATION AND CITIZENSHIP – Citizenship – Refusal of certificate pursuant to s 13 of the Australian Citizenship Act 1948 (Cth) – Whether discretion should be exercised in favour of Applicant – Application of Australian Citizenship Instructions – Severe hardship or disadvantage.

Australian Citizenship Act 1948 (Cth) s 13

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; (AAT 10017, 21 November 1979)

Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 12 ALD 416; (AAT 3331, 16 January 1987)

REASONS FOR DECISION

(Oral decision delivered 22 September 2006)

19 October 2006	J.W. Constance, Senior Member
INTRODUCTION

1. Mr Goddard has applied for a review of a decision of the Minister for Immigration and Multicultural Affairs, made 4 July 2006 refusing his application for a certificate of Australian citizenship under section 13 of the Australian Citizenship Act 1948 (Cth). For the reasons which follow, the decision under review will be set aside and in substitution it will be decided that Mr Goddard's application for Australian citizenship be granted.

FACTS

2.      I accept Mr Goddard as a truthful witness and I make the following findings of fact on the balance of probabilities.  These findings are based on Mr Goddard’s evidence and on the basis of the documents tendered at the hearing. 

3.      Mr Goddard arrived in Australia in February 2004 on a temporary resident spouse visa, with full intention of making Australia his home. Prior to his arrival in Australia Mr Goddard was a resident of the United Kingdom and he continues to be a UK citizen. Mr Goddard is married to an Australian citizen and has a daughter who was born since his arrival in Australia. He was granted permanent residency in Australia on 1 May 2005.

4.      Mr Goddard spent 14 years in the armed forces when in the United Kingdom. He has developed skills in high level security, predominantly within the government security field.  Since arriving in Australia he has continually sought employment in fields relevant to his specific job skills. He has been employed in various positions unrelated to his training because he has not been able to obtain employment in the fields for which his skills qualify him.  These positions include driving, working as a labourer in factories and car washing. He is presently employed as a security guard at an embassy. He has also spent periods unemployed.

5.      Mr Goddard gave evidence that he has applied for a number of positions for which he was amply qualified and experienced, and that in at least one instance he was informed he was the best person for the job but due his lack of citizenship, he could not be offered the position.  On other occasions, when he has contacted recruitment personnel regarding applications for which he has been unsuccessful, he was told that it was his lack of citizenship, rather than his skill level, that prevented his being successful in his application.

6.      In February 2006, Mr Goddard applied for a position with a government department and was successful in the initial interview.  The position is one which would utilise his skills.  Mr Goddard was told that he could proceed with the selection process, but he would not be offered the position unless he had attained Australian citizenship by the time the job was offered. Since lodging his application with the Tribunal, Mr Goddard has successfully progressed to the final stage of the selection process. This is a security and vetting stage which indicates that a job offer is likely to be made in the very near future.  I am satisfied on the balance of probabilities that Mr Goddard would not have advanced to this stage of the selection process if there was any reason other than a lack of citizenship which would prevent his being appointed to the position. 

7.      Mr Goddard gave evidence that his current employment situation is unstable. His evidence was supported by that of Mr Warner, a director of the company by which Mr Goddard is presently employed. Mr Warner gave evidence that Mr Goddard’s prospects of continued employment with the company depended upon the company’s success in renewing the contract it had with the embassy at which Mr Goddard works as a security guard.

8.      Mr Goddard and his wife are both contract casual workers and therefore are not entitled to the many benefits that go with permanent employment. During 2005, Mr Goddard and his wife had their first child. The birth of their daughter required Mrs Goddard to take a considerable amount of time off work.  That resulted in financial difficulties for the family and led to a significant amount of debt.  I accept that Mr and Mrs Goddard would like to have another child, but at present feel they are unable to do so because of their employment situation.

STATUTORY FRAMEWORK 

9.      Subsection 13(1) of the Act relevantly provides:  

“Grant of Australian citizenship

(1) Subject to this section, the Minister may, in the Minister’s

discretion, upon application in accordance with the approved form,

grant a certificate of Australian citizenship to a person who

satisfies the Minister that:

….

(d) the person has 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 during the period of 2

years immediately preceding the date of the furnishing of the

application;

(e) the person has been present in Australia as a permanent

resident for a period of, or for periods amounting in the

aggregate to, not less than 2 years during the period of 5

years immediately preceding the date of the furnishing of the

application…”

10.     Clearly, Mr Goddard does not meet the requirements set out above as he had only been a permanent resident for seven and a half months before his citizenship application.  Although I note that had Mr Goddard’s application been dealt with promptly, it would have been nearer to nine and a half months. Clearly, however, Mr Goddard is short of the time requirement in subsection 13(1).

11.     Subsection 13(4)(b)(iv) provides in relation to an application for citizenship:

“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…”

12.     Mr Goddard does not come within any of the exceptions in the subsection and therefore, in appropriate circumstances, a discretion could properly be exercised in his favour.

13.     Subsection 13(9) then goes on to provide that a discretion can be exercised in favour of an applicant, such as Mr Goddard, subject to various other conditions being fulfilled:

“Subject to subsection (11), the Minister may, in the Minister’s

discretion, upon application in accordance with the approved form,

grant a certificate of Australian citizenship to a person:

….

(d) who:

(i) has attained the age of 16 years; and

(ii) is a permanent resident and the spouse of a person who

has been granted a certificate of Australian citizenship

but has not yet acquired Australian citizenship by virtue

of the operation of section 15.”

This is the second provision under which, in appropriate circumstances, a discretion could properly be exercised in favour of Mr Goddard.

14.     In addition to the provisions of the Act, it is also necessary to take into account the Australian Citizenship Instructions which have been issued to provide guidance in the exercise of the Minister's discretion under the Act. Therefore, they are guidelines which need to be considered by this Tribunal.   

15. Part 4 of the Australian Citizenship Instructions provides that in exercising the significant hardship discretion under section 13(4), one relevant factor is whether an Applicant has “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 him/her”. [1]

[1] .

16. In relation to the discretion under section 13(9), the Australian Citizenship Instructions require that:

•      the applicant has been present in Australia as a permanent resident for at least 2 years in the five years immediately before the application, at least 12 months of which must have been within the 2 years immediately prior to that date unless:

-     the applicant has been a permanent resident in Australia continuously for the 12 months immediately prior to application and would otherwise suffer significant hardship or disadvantage (see 4.3.33 for guidance on hardship or disadvantage).

17.     In my opinion this Instruction imports the residency requirements set out in subsection 13(1)(d) and (e) of the Act back into the equation.

THE TRIBUNALS ROLE IN REVIEWING THE EXERCISE OF DISCRETIONARY POWER

18.     I was referred to two decisions concerning the role of the Tribunal when it is charged with reviewing the exercise of discretionary power by a minister. The first is that of Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 where His Honour Justice Brennan, then President of this Tribunal, referred to the importance of consistency in decision-making and went on to say:

“If consistency in decision-making is sought, as it ought to be, the standards and values which a Minister expresses in a statement of lawful policy can be a constant reference point for each of the presidential members of the Tribunal in exercising the discretion in particular cases. Ministerial policy can be an aid to consistency among Tribunal decisions, and to consistency between the decisions of the Tribunal and those of the Minister. Decisions made under a

statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power, and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review. These considerations warrant the Tribunal's adoption of a practice of applying lawful ministerial policy, unless there are cogent reasons to the contrary. If it were shown that the application of ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice….

In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice. When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case.” [2]

[2] At pp 644-645.

19.     Mr Goddard referred me to the case of Re Paul Noel Dainty and Minister for Immigration and Ethnic Affairs (1987) AATA 3331, again this was a decision of a President of this Tribunal, this time His Honour Justice Davies who stated:

“In the present case, it would, in my opinion, be wrong to treat the Minister's guidelines as binding criteria. The discretions conferred by s.13(4)(b)(iv) and by s.13(9)(c) establish for themselves guides to the matters to which attention ought to be given. S.13(4)(b)(iv) looks to "significant hardship or disadvantage". It would be wrong in my view to apply strictly a guideline which omits contemplation of business hardship and disadvantage. The discretion, moreover, looks to periods of presence in Australia which ought to be treated as periods of permanent residence. In my opinion, this requires attention to be given to the nature or character of the presence in Australia, that is to say to the family, social and business connections which gave rise to the presence in Australia. The closer the analogy between the periods of presence in Australia and permanent residence therein, the more readily the discretion may be exercised.” [3]

[3] At paragraph 28.

20.     The above statement appears particularly relevant to Mr Goddard's situation.

SUBMISSIONS ON BEHALF OF THE MINISTER

21.     The Minister’s argument was set out in detail in the Statement of Facts and Contentions filed with the Tribunal.

22. As previously stated I agree with the Minister’s contention that Mr Goddard does not meet the residence requirements of section 13(1)(d) and (e). However, by the Minister’s calculations Mr Goddard fails to meet the one in two year residency requirement by 136 days and fails to meet the two in five year residency requirement by 1597 days. I cannot work out how that last figure has been calculated. It seems to me to be clearly incorrect. Rather, it would appear that Mr Goddard has failed to meet the two in five year residence requirement by a year and 136 days. However, nothing really turns on these calculations because it is clear that Mr Goddard has not met the requirement.

23.     It was argued on behalf of the Minister that Mr Goddard has not demonstrated that he has been refused employment solely on the grounds of the requirement of Australian citizenship. Furthermore, there is no guarantee he will be offered the job for which he is presently under consideration.

24.     The Minister also disputed a number of details in the argument put by Mr Goddard. They are set out in the Minister’s Statement of Facts and Contentions and I have taken them into account.  A central element of the submissions is that Mr Goddard has failed to demonstrate significant hardship or disadvantage. Significant hardship or disadvantage, the Minister submitted, is a relatively high threshold to meet. The test is not whether Mr Goddard has demonstrated a commitment to Australia, rather he must demonstrate significant hardship or disadvantage.

DETERMINATION OF THE ISSUES

25.     I am satisfied, on the balance of probabilities, that Mr Goddard would suffer significant hardship if his application was not granted.  I am satisfied he has failed to obtain at least one position because of his lack of citizenship. I make that finding based on his evidence as to the reasons given by recruitment personnel for his failure to gain employment.

26.     I am satisfied that while Mr Goddard is not an Australian citizen, comparable employment commensurate with his skill level is not available him. Further, I am satisfied that if Mr Goddard is not successful in this application he will lose the opportunity of obtaining a financially rewarding position that is appropriate to his particular skill level.

27.     Mr Goddard has demonstrated a commitment to Australia. He is married to an Australian citizen. Mr and Mrs Goddard have a daughter born in Australia and they wish to increase their family and make Australia their permanent home. Mr Goddard has shown a preparedness to work a variety of jobs, some of which were well below his skill level, to ensure he provides for his family. No reason has been advanced by the Minister to suggest that Mr Goddard would not become an Australian citizen in the fullness of time.

28.     I am satisfied on the basis of the evidence set out above that Mr Goddard would suffer significant hardship if his application was not granted. To apply the policy guidelines strictly in circumstances such as this would mean that that formality would take precedence over justice.

29.     The discretion conferred by subsection 13(4)(b)(iv) should be exercised in favour of Mr Goddard. That is enough to deal with the matter. However, for completeness I will indicate that I am also satisfied the discretion under subsection 13(9)(c) should be exercised in Mr Goddard’s favour.

30.     As foreshadowed earlier, I am concerned in looking at the relevant Australian Citizenship Instructions that they appear to import back into consideration the very residency requirements that the discretion appears designed to alleviate. Again I refer to Mr Justice Brennan’s comments in Re Drake that where the strict application of ministerial policy would result in an injustice in a particular case, then “the cogent reason would be shown for consistency is not preferable to justice”.

31.     Similarly, I note the principle expressed by Davies J in Re Dainty that the discretions conferred by subsections 13(9)(c) and 13(4)(b)(iv) establish for themselves guidelines to the matters to which attention ought be given.  

32. Mr Goddard has demonstrated a commitment to Australia, he hopes to establish his family in Australia and provide financial security for them. I am satisfied that it would be an injustice if the discretion in section 13(9) was not exercised in Mr Goddard’s favour.

DECISION

33.     The decision under review is set aside and in substitution, it is decided that Mr Goddard's application for a Certificate of Australian Citizenship be granted.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.

Signed:         .....................................................................................
  Joe Meagher, Associate

Date/s of Hearing  15 September 2006

Date of Oral Decision  22 September 2006
Representative for the Applicant     Self
Solicitor for the Respondent            Clayton Utz