Hecht and Minister for Immigration and Multicultural Affairs
[2006] AATA 1084
•18 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1084
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2006/157
GENERAL APPEALS DIVISION ) Re RIVKA HECHT Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date18 December 2006
PlaceMelbourne
Decision The decision under review is affirmed. ..............................................
Senior Member
CITIZENSHIP – applicant lived in Australia for 18 years – moved to United States of America – studied, worked and obtained qualifications – returned to Australia after 6 years – whether engaged overseas in activities beneficial to the interests of Australia – decision affirmed
Australian Citizenship Act 1948 (Cth) s 13 (1)
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Minister for Immigration Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656
Re Lan and Minister for Immigration and Multicultural Affairs [2001] AATA 362
Re Teachaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425
REASONS FOR DECISION
18 December 2006 Mr John Handley, Senior Member 1. Mrs Hecht, the applicant in this review, is a citizen of the United States of America (“the United States”). She is also a permanent resident of Australia. An application for Australian citizenship was made on 3 February 2006 and was refused on 21 February 2006. This application is a challenge to that decision.
2. It was not in dispute that the applicant had been absent from Australia for approximately six years prior to her application for citizenship. It followed that she was not able to satisfy the provisions of s 13 (1) of the Australian Citizenship Act 1948 (the Act) in so far as it refers to presence in Australia for defined periods of time, prior to the furnishing of a citizenship application.
3. The applicant relied on s 13 (4) (b) (i) of the Act which is in the following terms:
4)For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
(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.
4. The background to the making of the application may be briefly summarised as follows.
5. The applicant entered Australia on 14 July 1981 with her parents who were – and remain – citizens of the United States. Her father took up an academic position in Melbourne. The applicant was 6 months of age at arrival. Another 8 children were subsequently born and are therefore citizens of Australia. On 10 March 1999, the applicant, her parents and her siblings travelled to the United States. The applicant studied and worked in the United States until January 2006 when she, with her husband, returned to Melbourne. She has subsequently been a full time student in the Bachelor of Jurisprudence program at Melbourne University.
the evidence
6. The applicant completed her pre-school, primary and secondary education at the Beth Rivka Ladies College in Melbourne commencing in January 1984 and concluding in December 1998 with a VCE Tertiary Entrance Ranking of 98.4 per cent. She was then offered a place in the combined Arts/Law degree program at Melbourne University in January 1999 but declined because she and her family moved to the United States in March of that year. The placement in that program was deferred for 12 months but was eventually forfeited because she did not return to Australia. Whilst she was a secondary student, the applicant was engaged in a number of extra curricular activities involving membership of the school council as a students’ representative and undertaking school initiated community service programs, including assisting families after school.
7. The applicant was 18 years of age at January 1999 but did not then apply for citizenship. She said she decided that she wanted to become a citizen of Australia whilst she was overseas between 1999 and 2005.
8. From 1999, the applicant sought placements in a number of schools in order to obtain certification as a teacher. Between 2000 and 2002, she taught grades 5, 6, 7 and 8 at a school in Manhattan Beach and taught adults in night classes. She taught the subjects of comparative history (between the United States and Australia), English Language, English History and Jewish Studies.
9. The applicant estimated that she delivered approximately 10 lectures per week, each of approximately one hour duration, in the subject of comparative history to the day time students in years 5, 6, 7 and 8. She estimated that she taught comparative history during evening classes at two hours per night at an average of four or five nights per week. The curriculum was devised by her and was based on her studies of Australian history and geography, as a student, in Australia. The course content in its comparison between Australia and the United States emphasised the international status of Australia despite it being a relatively young country. The course also involved discussion of Australian culture and particular geographical features. Examples given by the applicant were the Australian coastline, forests, desert and rock formations. She said that the students who lived in high rise buildings in New York were interested in her discussions of the culture of Australian homes having gardens.
10. From mid‑2002, the applicant ceased daytime teaching and obtained a part‑time position with a medical clinic which practised paediatric medicine and vascular surgery. She said that she worked as a “medical assistant” and a “director of laboratory regulations”. Whilst an employee of that clinic, she was also responsible for it obtaining accreditation as a pathology facility. She continued to teach adults at night. The applicant also enrolled in a Bachelor Degree of Liberal Arts and also was engaged in obtaining qualification as a herbalist in Chinese medicine. She eventually obtained her degree and was certified as a herbalist. In mid‑2004, she commenced practice as a herbalist on a part-time basis.
11. The applicant said that whilst she lived in New York between 1999 and 2005, she always considered herself to be an Australian and always intended to return to Australia. Her parents kept their home in Melbourne and it was understood that they would eventually return to Australia.
12. In 2005, the applicant married and made enquiries of the Australian Consulate in New York of her intention to obtain Australian citizenship. She understood – based on advice that was given – that her work in the United States and her period of residence in Australia would be taken favourably into account if an application for citizenship was made. She returned to Australia in January 2006 and made application for citizenship in February 2006. At or about that time, the applicant was accepted into the Bachelor of Jurisprudence program at Melbourne University which involves two years of full-time study. The applicant intends to qualify as a lawyer and will seek employment in government service.
13. The applicant said that she has made the application for Australian citizenship because she is a permanent resident and has been for many years. It is her intention to continue to live here on a permanent basis and wants to enjoy the benefits of citizenship including the opportunity to vote in elections. She has also learnt that employment with government agencies may not be available to her unless she is an Australian citizen.
norman rosenbaum
14. Mr Rosenbaum is a Barrister and a Member of the Victorian Bar. He gave evidence on behalf of the applicant. He said he first met her in 1981 when she and her parents arrived in Australia. He had been a close friend of her family for many years in Melbourne and was aware of her schooling at the Beth Rivka Ladies College. Later, after she had moved to New York, Mr Rosenbaum said that he saw her on a number of occasions where he was invited to speak to the students at the school where she was a teacher.
15. Mr Rosenbaum said it was obvious to him by his discussion with students at the school that the applicant had been of considerable influence. He learnt that the students did have a broad knowledge of Australian history and culture which could only have been learnt by her instruction.
16. Additionally, Mr Rosenbaum said that it was understood that the applicant and her parents would eventually return to Australia. He said after the family moved to the United States in 1999 the family home remained empty and was not tenanted. He is aware that the applicant has resided in it since she returned to Australia. He has had discussions with her concerning her entry into the Bachelor of Jurisprudence program at Melbourne University and has also discussed opportunities that may be available to her both in private practice and as a lawyer in government service.
t‑documents
17. In addition to the evidence given by the applicant at the hearing, she relied on a letter she wrote found at T7 dated January 2006. The letter mirrors a number of issues which emerged in evidence and within a Statement of Facts and Contentions lodged prior to the commencement of the hearing. In summary it records that whilst living overseas she was not a burden on the Australian Government and did not claim or receive any aid or benefits. After arrival in the United States, the applicant commenced study in a religious teachers’ seminary in Israel where she qualified as a teacher of primary children in the United States. She later obtained a degree in Liberal Arts and after some further study, qualified and was certified as a herbalist in traditional oriental medicine. That qualification permitted her to commence self‑employment as a practitioner in Chinese herbology in a practice known as the Ginseng Clinic of Alternative Medicine. Whilst overseas she also led tours of youth groups to Italy and California. During those tours she was educating many friends and co-workers about the beauty of Australia. Based on my recommendations many actually took trips to visit this country.
18. The main thrust of the letter – re‑inforced by her evidence was:
The time that I spent residing in the USA has been very beneficial to the Australian Society by helping to further my participation in this country in actually studying Australian Law and the Australian Legal system and to increase the positive difference and impact on our society by practicing and working in this field. Therefore the activities engaged in, outside of Australia are beneficial to the public interests of Australia and will continue to be beneficial to the public interests of the Australian Community.
19. Later the letter records that the applicant maintained a connection with Australia whilst overseas by reason of a continuing association with family and friends. The former family home in Caulfield was maintained and she returned to live in it. The applicant concluded that citizenship would enable her to defend Australia, vote at Government elections and serve on a jury. She undertook to obey Australian laws, would have the qualification to obtain an Australian passport, would seek protection from Australian Diplomats when overseas and would continue to reside in Australia and maintain a close continuing association with Australia.
20. A letter in support of citizenship was lodged with the respondent by Dr Tali Houseman of January 2006 who recorded that by reason of the applicant’s study and work experience overseas, including alternative and conventional medicine, she had become a worthy candidate for acceptance into the Melbourne JD – Juris Doctor post graduate program of law at Melbourne University. It was his belief that her prior experiences abroad have been beneficial and will now allow her to further her benefit to Australia.
21. Mr Rosenbaum who gave evidence at the hearing also wrote a letter on 2 February 2006 found at T8. The letter also mirrored his evidence but especially at page 69 he recorded:
Over the years while she was overseas Rivka and I kept in regular contact and I was able to visit her at work when she was teaching in both the United States and Israel on a number of occasions. Rivka is held in the highest esteem by her students, colleagues, and superiors. She was able to introduce Australia to her students (and their parents) in a most personal and meaningful way. Rivka is a wonderful ambassador for Australia.
minsterial policy
22. The policy of the Minister with respect to the grant of Australian citizenship is found at T4. Relevantly the policy with respect to persons who apply under s13(4)(b)(i) of the Act is found at pages 30 and 31. The policy records that an applicant for citizenship in the circumstances contemplated by this section 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. The policy records that the person must have been engaged in a series of activities, during the period under consideration, and if the activities were beneficial to the interests of Australia the policy will not apply if there are no current benefits irrespective of whether benefits may accrue in the future. This part of the policy concludes with the provision that the Ministerial discretion will usually only be exercised if the person was required to work overseas by State or Federal Government or by a private employer or if self‑employed, frequent overseas travel was essential for the successful operation of their business or, the person was 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.
23. Policy is not a substitute for the relevant law as recited by the legislation. But in administrative review, policy of Government is not to be ignored. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Brennan J, at 645 decided:
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.
conclusion and reasons for decision
24. The applicant impressed me as a person of considerable endeavour and vigour. I accept without reservation that she travelled overseas only because her family did so in order for her father to take up an appointment in the United States. I also accept that whilst overseas, the applicant was engaged in further education from which she obtained a number of academic qualifications. I also accept that she was engaged in teaching children and adults, part of which involved the teaching of Australian history and a discussion of features that are unique and applicable to Australia. I also accept that the applicant has a commitment to Australia and she will, as she said in evidence and in her written submissions, be of benefit to the Australian community should citizenship be granted.
25. The qualifying criteria under s13(4)(b)(i) however, requires satisfaction that whilst not present in Australia, the applicant was engaged in activities that were beneficial to the interests of Australia. If that provision is satisfied, she will be deemed to have been present in Australia during relevant times overseas and will be permitted to qualify as an Australian citizen.
26. I have read the comprehensive written submissions of Counsel for both parties. I am grateful for the assistance provided by them. On balance, I am not satisfied that the applicant can satisfy s 13(4)(b)(i).
27. His Honour, Einfield J in Minister for Immigration Local Government and Ethnic Affairs v Roberts (1993) 29 ALD 656 (Roberts) commented upon the effect of the same provision of the Act now applicable in the case of a person who had lived in Australia for 20 years before travelling overseas. His Honour regarded it as being quite anomalous, even a trifle absurd that a person who has lived legally in Australia for more than 20 years and is to all intents and purposes an Australian, has to pass arbitrary tests for citizenship. However, a period of residence prior to travelling overseas is not a qualifying provision within the section under consideration by these proceedings. If it was, the applicant may well succeed. Whilst I am therefore sympathetic to the applicant’s contention that she resided in Australia for almost 18 years prior to travelling overseas, I cannot take that into account in these proceedings.
28. The issue that must be examined is whether the applicant was engaged in activities beneficial to the interests of Australia, when overseas.
29. In Roberts His Honour noted that the relevant words of the section were not defined but at page 660 he decided:
It seems to me that the term activities beneficial to the interests of Australia means something in the nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connotes some public interest in Australia, even if of a general or non-specific character, and means more than the private interests of the respondent. The section requires some objective benefit to Australia.
30. In that case, the applicant for citizenship had been engaged as a rigger on off‑shore oil rigs overseas. His Honour noted that oil rig construction was beneficial to the interests of Australia but it was doubtful that construction of rigs in the United Kingdom and Brunei was advantageous to Australia. In the absence of evidence in support of that contention, His Honour ultimately found that the applicant had not been engaged in activities beneficial to the interests of Australia.
31. In contrast, the Tribunal decided in Re Teachaubol and Minister for Immigration and Multicultural Affairs [2001] AATA 425, that an applicant who had substantially invested in Australia and who promoted Australian business interests in Thailand, had been engaged in activities beneficial to the interests of Australia. A similar conclusion was reached in Re Lan and Minister for Immigration and Multicultural Affairs [2001] AATA 362 where it was decided that an applicant who held extensive real estate interests in Australia, did not hold real estate overseas and who attracted investment to Australia by selling insurance overseas and who employed Australian persons, had been engaged in activities beneficial to the interests of Australia.
32. Upon the evidence of the applicant, I cannot be satisfied that she was engaged in activities overseas which provided advantage to Australia or was in the public interest of Australia as opposed to her private interests. There is in my view an absence of evidence pointing to the applicant having been engaged in activity which was of objective benefit to Australia (refer Roberts).
33. The applicant asserted that by her teaching and informing others of features of Australia that some persons travelled here upon holiday. That does not in my view satisfy the sub-section. The applicant herself does not have any tourism or like qualifications and it was not asserted that she was actively engaged in promoting Australian tourism or business, social, cultural, economic or political interests in Australia (refer Policy). Equally, it could not be said that the activities of the applicant overseas would be widely recognised by members of the Australian community or prominent persons associated with the applicant’s field of endeavour in her having been engaged in activities beneficial to the interests of Australia (refer Policy). In my view, despite the merit in her achievements in teaching, with Chinese medicine and in a pathology laboratory, the feature absent from this review is how those achievements are beneficial to Australia’s interests.
34. The intelligence of the applicant is not in issue and her obtaining qualifications overseas are in my view more in the nature of private interests rather than the public interest of Australia. It was asserted that having obtained qualifications in Chinese medicine that she would be of benefit to members of the Australian public in providing an additional form of treatment or remedy for illness or injury. There was no evidence to support that contention. It is true that upon qualifying as a lawyer – which I have no doubt the applicant will –she would be of benefit to the Australian community in her service either with government or in the private profession. But again, in my view, that is a private interest and it is an interest arising out of a qualification from study which has occurred within Australia. That is to say, obtaining such a qualification in Australia is not relevant in an examination of activities in which the applicant was engaged overseas.
35. In conclusion, whilst I have no doubt that the persons with whom the applicant had contact either socially or professionally overseas, have a greater appreciation of Australia by her instruction, there is nothing which points to that knowledge being beneficial to Australia’s interests.
36. In all of the circumstances the decision under review should be affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: .....................................................................................
Personal AssistantDate of Hearing 5 October 2006
Date of Decision 18 December 2006
Counsel for the Applicant Mr E J PowerSolicitor for the Respondent Mr M. Brereton
Australian Government Solicitor
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