Jaggi and Minister for Immigration and Citizenship

[2007] AATA 1994

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1994

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2720

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SUNIL JAGGI

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP  

Respondent

DECISION

Tribunal Mr Egon Fice, Member  

Date29 November 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Egon Fice

Member

CITIZENSHIP – failure to meet residence requirements – activities in the interests of Australia – public character of activities – hardship considerations

Australian Citizenship Act 1948

Australian Citizenship Act 2007 (Australian Citizenship (Transitionals and Consequentials) Act 2007)

Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 113 ALR 151

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Stevens v Kabushiki Kaishi Sony Computer Entertainment and Others (2005) 224 CLR 193

REASONS FOR DECISION

29 November 2007 Mr Egon Fice, Member       

1.      Mr Sunil Jaggi, an Indian national, first lodged an application for grant of Australian Citizenship in June 2006 at New Deli.  He had been granted a Permanent Residence Visa (Subclass 136 – Skilled ‑ Independent) in 2002.  That visa expired in April 2007.  A delegate of the Minister for Immigration and Citizenship (the Minister) decided to refuse Mr Jaggi’s citizenship application because he did not meet the residence requirements and because, at the time the decision was made, Mr Jaggi’s permanent residence visa had expired.

2.      Although Mr Jaggi sought review of the delegate’s decision, because he was not a permanent resident at that time, the Tribunal determined that it did not have jurisdiction to review the decision.

3.      In May 2007 Mr Jaggi was granted a Five Year Resident Return (Subclass 155) Permanent Resident Visa.  Immediately following that grant, Mr Jaggi applied again to the Tribunal for a review of the delegate’s decision made in April 2007.  Mr Jaggi also applied for an extension of time in which to lodge that application.  The application for an extension of time was not opposed by the Minister. 

4. Mr Jaggi does not dispute that he does not satisfy the requirements of s 13(1)(d) and s 13(1)(e) of the Australian Citizenship Act 1948 (the Citizenship Act) regarding presence in Australia. The only issue for determination before me is whether the discretion set out in s 13(4)(d) of the Citizenship Act should be exercised, so as to regard periods of time during which Mr Jaggi was not present in Australia as a period during which he was present in Australia as a permanent resident, because he was engaged in activities which could be considered to be beneficial to the interests of Australia.

RELEVANT BACKGROUND

5.      Between 1999 and 2002 Mr Jaggi had periods of extended lawful temporary residence in Australia as an overseas student.  On 9 April 2002, while not present in Australia, he was granted a Skilled-Independent (Subclass 136) Permanent Residence Visa.

6.      It appears that while Mr Jaggi was in Australia, he identified a business opportunity which involved assisting Indian students to obtain education positions in Australian higher education institutions.  He became a Registered Migration Agent and made contact with a number of higher education institutions in Australia.  He obtained approval to act as their authorised agent for the promotion of their education programs and the recruiting of suitable students for those programs.

7.      In order to conduct his migration business, Mr Jaggi said that he established an Australian company on 12 March 2003.  That company, he said, was called Australian Migration Specialist.  Although Mr Jaggi may believe that is an Australian company, the only evidence in the documents before me indicates that Australian Migration Specialist is a registered business name.  It is not a corporate entity.  Mr Jaggi also said that he established a company in India in March 2004.  According to Mr Jaggi, that company is called Auscan Education & Immigration Consultants Pvt Ltd.  He also registered another business name Aussie Overseas, in South Australia in November 2006. 

8.      To obtain suitably qualified Indian students who wished to study at Australian educational institutions, Mr Jaggi was required to promote the Australian institutions in India.  Necessarily, this involved Mr Jaggi in spending a considerable period of time in India rather than in Australia.

9.      According to Mr Jaggi, the number of students he has assisted to obtain education places in Australia has increased from very small numbers in 2004 to something in excess of 600 in the 2007 year.  He said that the average fees paid by students were about $12,000 per year.  The courses of study usually lasted two years.  Mr Jaggi’s commission for procuring suitable students was between 10 and 30 percent of the fees charged.

10.     Mr Jaggi said that his two children were Australian citizens.  His wife has a permanent residence visa.  He also said that he planned to move back to Australia at the end of 2007.  He believed that his education migration business was now sufficiently well developed for him to spend more time in Australia.  He wanted his children to commence school in Australia.  He said that he would need to travel to India from time to time but that he intended to be essentially based in Australia from the end of this year.

LEGISLATIVE SCHEME

11. Although the Citizenship Act was repealed upon the introduction of the Australian Citizenship Act 2007 (Australian Citizenship (Transitionals and Consequentials) Act 2007), the review previsions set out in s 52A of the Citizenship Act continue to apply in relation to a decision made under that Act as if the repeal had not been made (Schedule 3, Item 10). Section 52A(1)(a) provides that applications may be made to the Tribunal for a review of a decision of the Minister, made under s 13, refusing an application for citizenship. The decision of the Minister’s delegate was made under s 13(1) and s 13(1A) of the Citizenship Act on 11 April 2007.

12. Section 13(1) of the Citizenship Act sets out a number of criteria that must be satisfied before the Minister’s discretion to grant a Certificate of Australian Citizenship is enlivened. As far as this application is concerned, the relevant criteria are set out in s 13(1)(d) and s 13(1)(e) which provide:

…

(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…

13. Where a person is not residing in Australia, s 13(1A) applies. It provides that the Minister must not grant an Australian citizenship in those circumstances unless the person is a permanent resident and the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia. This subsection presupposes that the applicant for Australian citizenship has met all of the criteria set out under s 13(1) of the Citizenship Act.

14. Where an applicant for Australian citizenship is unable to satisfy the requirements of s 13(1)(d) or s 13(1)(e), the Minister has a discretion to treat the period during which the applicant was not present in Australia but was engaged in activities outside Australia that the Minister considers are beneficial to the interests of Australia, as a period during which the applicant was present in Australia as a permanent resident (s 13(4)(b)).

RESIDENCE IN AUSTRALIA

15. The first problem encountered by Mr Jaggi is the fact that he does not meet the residence requirements set out in s 13(1)(d) and s 13(1)(e) of the Citizenship Act. Between the time Mr Jaggi was granted permanent residence on 9 April 2002 and his application for Australian citizenship on 9 June 2006, he had spent 501 days in Australia. In the two years immediately prior to his application for Australian citizenship, he only spent 20 days in Australia. It therefore follows that, without invoking the ameliorative provisions set out in s 13(4)(b)(i) of the Citizenship Act, the Minister’s discretion cannot be exercised under s 13(1).

16. Furthermore, because Mr Jaggi does not reside in Australia at this time, unless he is able to demonstrate that he is engaged in activities outside Australia that are beneficial to the interests of Australia, the Minister cannot grant him Australian citizenship. If he were able to satisfy the Minister that his activities outside Australia are beneficial to the interests of Australia, then he may be able to satisfy the requirements of s 13(1A) and, at the same time, enliven the Minister’s discretion to treat that time spent outside Australia as if Mr Jaggi were present in Australia as a permanent resident. Therefore, it is fair to say that Mr Jaggi’s application depends entirely on whether it can be said that his activities in sourcing suitable students to undergo higher education in Australia are properly described as activities beneficial to the interests of Australia.

ACTIVITIES BENEFICIAL TO THE INTERESTS OF AUSTRALIA

17. The words used in s 13(4)(b)(i), beneficial to the interests of Australia, are not defined in the Citizenship Act. The word Australia is defined only in a geographical sense.  It does not assist in the context of the phrase in question.  Therefore, the ordinary meaning of the words used in that phrase must be applied. 

18.     Furthermore, as McHugh J said in Stevens v Kabushiki Kaishi Sony Computer Entertainment and Others (2005) 224 CLR 193 at 230:

...

In determining issues of statutory construction, the text of the relevant statutory provision must be evaluated not only by reference to its literal meaning but also by reference to the purpose and context of the provision…

19. I should also mention that the Department of Immigration and Citizenship has developed guidelines to give effect to ministerial policy in relation to citizenship matters. These guidelines need to be considered because s 13(4)(b)(i) of the Citizenship Act provides the Minister with discretion to determine what is considered to be beneficial to the interests of Australia for the purposes of the Act. The guidelines are contained in the Australian Citizenship Instructions and, insofar as they are relevant, they provide:

4.3.21        Under ministerial policy, 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)

4.3.22        If the applicant is overseas, the discretion will normally not be exercised.

20.     Brennan J (President) in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 said that there are powerful considerations in favour of a Minister adopting a guiding policy.  He also cautioned that policy must be consistent with the statute.  He noted that the Minister’s discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases.

21. It is clear that although it is desirable to apply ministerial policy where it is appropriate to do so, I am required to do so in a manner consistent with the statute. Therefore, the guidelines can be applied as long as I bear in mind that the activities which Mr Jaggi says were responsible for him not meeting the residence requirements in s 13(1) can be described as beneficial to the interests of Australia. That phrase was discussed by Einfeld J in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 113 ALR 151 at 156 where he said:

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 of Australia, even if of a general or non-specific character, and means more than the private interests of the respondent. The section retires [sic] some objective benefit to Australia.

22.     It is therefore clear that in applying the guidelines established under ministerial policy, I am required to steadfastly bear in mind that the activities relied on must have a public character for them to be considered beneficial to the interests of Australia.  The adjective public means pertaining to the people as a whole; common, national, popular or done or made by or on behalf of the community as a whole.  (The Shorter Oxford English Dictionary).

23.     The way Mr Jaggi put his case was that he was self-employed and that he was required to spend considerable time in India sourcing suitable students for the Australian education institutions for whom he acted as agent.  I have no doubt that the nature of Mr Jaggi’s business is such that he is required to spend substantial time in India in relation to that activity.  However, the difficulty that I have is discerning any public character in his activities.

24.     The nature of Mr Jaggi’s business activities are essentially of a private nature.  As Mr Forthsaith, a solicitor with the Australian Government Solicitor representing the Minister, submitted, the international trade in education is a multi-billion dollar industry world-wide, and the number of Indian students studying in Australia was about 20,000 in 2004.  Furthermore, the Indian education market is well developed and there is nothing that Mr Jaggi does in the course of operating his business which could be said to be advancing that market in any significant degree.  Mr Jaggi did mention that he had participated in a Skills Expo organised by the Department of Immigration and Multicultural and Indigenous Affairs (as it then was).  However, that appears to be a one of event which lasted for two days.  I also did not understand Mr Jaggi to be saying that he was involved in locating skilled workers overseas for the purpose of having them migrate to Australia.  Significant activity in that kind of field might more readily be seen to have a public element.  However, students who come to Australia to study and then return to India do not fall into that category.  I am aware that many students stay on in Australia as permanent residents and contribute to Australian society.  However, there was no evidence before me to suggest that any of the students sourced by Mr Jaggi did so.

25.     Mr Jaggi also mentioned in evidence that he had disclosed evidence of some migration frauds being committed in India.  Although Mr Jaggi said that he had a number of emails which evidenced him reporting that activity, none were produced at the hearing.  Even if Mr Jaggi has reported such activity, which I am prepared to accept, while that is obviously in the public interest of Australia, because it is an aside to his principal activity, it is not, by itself, sufficient to satisfy the ameliorative provision.

26.     In the course of the hearing I asked Mr Jaggi whether a refusal to grant Australian citizenship to him would cause any hardship.  He said that it would not.  He also said that he intended to move back to Australia in December 2007 together with his wife and two children who were now approaching school age.  He said that he would in any event need to travel to India from time to time in order to further advance his business.  Nevertheless, as the matter now stands, Mr Jaggi’s current visa entitles him to permanent residence in Australia until 2012.  As a result, if he is not granted Australian citizenship at this time, his business will remain unaffected.

CONCLUSION

27. Because Mr Jaggi does not meet the residence requirements as set out in s 13(1) of the Citizenship Act, and he does not presently reside in Australia, he must satisfy the Minister that he is engaged in activities outside Australia that are beneficial to the interests of Australia. In my view, the matters which Mr Jaggi referred to as being beneficial to the interests of Australia are, essentially, private business interests. His primary business in sourcing Indian students to undergo education in Australian institutions is strictly of a private nature. There is no public element involved in that activity. Although it may be said that some benefits flow through to Australia as a whole, they are not so direct or significant that they can be properly described as having a public character.

28.     Also, Mr Jaggi frankly admitted that he would not suffer any hardship were citizenship not granted at this time.  Given that he intends to return to Australia with his wife and children to reside on a permanent basis in December 2007, and that his permanent residence visa will remain valid until 2012, his business will remain unaffected.  Furthermore, he should not have any difficulty in meeting the residence requirements under the Australian Citizenship Act 2007 within the period of validity of his permanent visa.  Although the residence requirements involve presence in Australia for a period of four years immediately before the day the application is made, as long as the total period of absence or absences does not exceed twelve months during that period a person is taken to have been present in Australia during each period of absence.  Also, the requirement to be present in Australia for the period of 12 months immediately prior to the day of making an application for citizenship is relaxed as long as the total period of absence or absences does not exceed three months during that period.

29.     Therefore, in my view the decision of the Minister’s delegate made on 11 April 2007 was correct and should be affirmed.

I certify that the twenty‑nine [29] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of Hearing:  26 October 2007

Date of Decision:  29 November 2007

Solicitor for the applicant:            Nil‑ Self-represented

Solicitor for the respondent:         Mr J. Forsaith, Australian Government Solicitor