Koh and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 956
•15 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 956
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/96
GENERAL ADMINISTRATIVE DIVISION
Re: YING KENG KOH
Applicant
And: MINISTER FOR IMMIGRATION
AND MULTICULTURAL AND
INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 15 September 2004
Place: Melbourne
Decision:The Tribunal affirms the decision review.
(sgd) E.A. Shanahan
Member
IMMIGRATION – Australian citizenship – exercise of discretion to grant citizenship after 12 months permanent residency – spouse of Australian citizen – significant hardship or disadvantage – Departmental Policy
Australian Citizenship Act 1948 ss13(1)(e), 13(4)(b)(iv), 13(9)(c)
Australian Citizenship Instructions4.3.32, 4.3.33, 4.5.1, 4.5.2
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634
Re Frunz and Minister for Immigration and Multicultural Affairs (2000) 31 AAR 550
Re Wong and Minister for Immigration and Ethnic Affairs (1996) 41 ALD 672
Re Waiba and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 668
REASONS FOR DECISION
15 September 2004 Miss E.A. Shanahan, Member
1. This is an application by Ms Ying Keng Koh (the applicant) for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 20 January 2004. The reviewable decision refused the applicant a grant of Australian citizenship (T1), as she did not meet the requirement of s 13(1)(e) of the Australian Citizenship Act 1948 (the Act). The applicant sought review of the decision by the Administrative Appeals Tribunal on 3 February 2004.
2. The applicant was self‑represented, but was assisted by Ms J. Pentland, a financial counsellor with Eastern Access Community Health. The respondent was represented by Mr S. Small, a solicitor with the Australian Government Solicitor. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). The applicant tendered a statement by Ms Pentland dated 2 June 2004 (Exhibit A1), a copy of the applicant’s Certificate of Marriage to Graham Charles Beaumont dated 14 October 2000 (Exhibit A2), a document, obtained from the Internet, regarding Malaysian Passport and Travel Documents (Exhibit A3), a copy of a document obtained from the internet and entitled Leaving Country Withdrawal Scheme (Exhibit A4), ostensibly part of the Malaysian Government's Employees Provident Fund Members’ Withdrawal Scheme, and a statement from the applicant’s superannuation fund in Malaysia (Exhibit A5), which indicates the value of the applicant’s superannuation was approximately A$30,000 as at 21 March 2004. On 16 January 2005 the applicant will be eligible for Australian citizenship, as she was granted a subclass 801 spouse visa and became a permanent resident on 17 January 2003.
BACKGROUND TO THE APPLICATION
3. The applicant is a citizen of Malaysia and she has visited Australia since 1996. On 5 September 2000 she arrived in Australia on a subclass 976 tourist visa. On 14 October 2000 she married Graham Charles Beaumont, an Australian citizen. On 17 January 2003 she was granted a subclass 801 spouse visa and became a permanent resident. She has remained in Australia since that date.
4. On 17 January 2004 the applicant lodged an Application for a grant of Australian citizenship for herself and her children. Her application was denied as she had only been a permanent resident in Australia for one year and the Act requires permanent residency of two years in the five years immediately prior to lodgement.
5. On 3 February 2004 the applicant applied to the Administrative Appeals Tribunal for review of the decision. She based her application on, first, being prevented from applying for employment in the Australian Government sector, and secondly, on the basis of financial hardship resulting from the need to renew the Malaysian passports and entry visas for herself and her two children, to enable them to visit "elderly and ailing parents" (Statement of Facts and Contentions dated 13 May 2004). Thirdly, she claimed she could not transfer money from Malaysia until she had the security and legality of Australian citizenship and that she needed her superannuation funds for financial support and security.
EVIDENCE BEFORE THE TRIBUNAL
Ms Koh
6. The applicant gave evidence that she was the only family member currently with an income and she earned $2700 per month net with Kodak Australia. She stated she preferred to work in the public sector and had applied for several government jobs but had been unsuccessful. She said she had not been told that she would have obtained such employment if she was an Australian citizen.
7. The applicant agreed with Mr Small that she was eligible to renew her Malaysian passport at any time, but she said that would cost $112 plus and she would have to apply for the cost of a re‑entry visa. Mr Small pointed out that an Australian passport cost $150.
8. The applicant doubted that her children's father (her former husband) would agree to the renewal of their Malaysian passports. She had discussed this matter with him and had requested he pay one child's airfare to Malaysia, but she had not heard from him since her telephone call of 20 May 2004.
9. The applicant informed the Tribunal that her parents had agreed to pay the $3000 for the airfares for her and her children. While they could help with the cost of the passports, they had asked her to bear this expense.
10. Mr Small asked the applicant whether her superannuation funds were intended for retirement in Malaysia, as she and her children were in Australia. The applicant replied that there had been a recent change in superannuation rules in Malaysia (Exhibit A4) and superannuation funds could be accessed once Malaysian citizenship was renounced. The applicant agreed these funds could be accessed by application from outside Malaysia, but, as all her documentation was stored at her parents' home in Malaysia, she needed to return there to find them. She doubted that her parents would be able to locate the documentation.
11. The other purpose of her travel to Malaysia was to see her parents and grandmother. Her grandmother is aged 90 and is in poor health. The applicant could not provide documentation as to the health of her grandmother.
12. Mr Small took the applicant through the relevant Australian Citizenship Instructions (Instructions) relating to Residence Discretion, as outlined at clause 4.3.33. She agreed she did not meet any of the criteria regarding employment and the ability to obtain a passport. The question of representing Australia in an international forum was not relevant. Similarly, she did not meet the criteria for the exercise of the discretion under paragraph 4.5 of the Instructions relating to s 13(9)(c) of the Act and applying to spouses of Australian citizens. The applicant said she needed the discretion to be exercised in her favour for financial and emotional reasons.
13. The Tribunal asked the applicant why she was the only breadwinner in the family. She told the Tribunal that her husband was not working, had moved out of the matrimonial home in March 2004, and was now living with his parents. He had previously contributed to household expenses. Should the applicant travel to Malaysia, her children (aged 10 and 12) would have to accompany her as there was no one in Australia to care for them.
14. Ms Pentland had the applicant confirm that, in order to access her superannuation funds in Malaysia, she must renounce her Malaysian citizenship.
LEGISLATION AND POLICY
15. Section 13 of the Act provides:
13(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:
…
(e)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:
…
(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:
…
(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
…
(9) 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:
…
(c)who is a permanent resident and is the spouse, widow or widower of an Australian citizen; or
AUSTRALIAN CITIZENSHIP INSTRUCTIONS
16. The Instructions sets out the policy guidelines which are to be applied by delegates of the Minister in assessing applications for the grant of a Certificate of Australian Citizenship under the provisions of s 13 of the Act. They relevantly provide:
4.3 THE RESIDENCE REQUIREMENTS IN s 13(1)
,,,
Residence discretion: residence earlier than 5 years before application (s 13(4)(b)(ii))
…
4.3.32There is a discretion to count permanent residence earlier than 5 years before application towards the "2 years in 5" residence requirement. This discretion does not apply to the "1 year in 2" residence requirement.
4.3.33As a matter of policy, this discretion would usually only be exercised in one of the following situations of hardship or disadvantage:
·The applicant can demonstrate that he/she 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;
·The applicant would be excluded from travelling internationally because he/she cannot obtain a passport or because he/she is 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
…
4.5 SPOUSES, WIDOWS AND WIDOWERS OF AUSTRALIAN CITIZENS
s 13(9)(c)
4.5.1Section 13(9)(c) gives a discretion to grant a certificate of Australian citizenship to a permanent resident who is the legal spouse, widow or widower of an Australian citizen.
4.5.2Applicants are usually required to meet all of the following requirements:…
·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 last 12 months immediately prior to application and would otherwise suffer significant hardship or disadvantage (see 4.3.33 for guidance on hardship or disadvantage)…
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
17. The T‑documents contained details of the applicant’s visits to Australia between 22 December 1996 and 5 September 2000 (T8) and copies of her passport (T5) and those of her children (T6‑T7). In her application for a grant of Australian citizenship, the applicant stated her children arrived in Australia on 15 November 2000.
18. Ms Pentland's statement (Exhibit A1) records that she has worked with the applicant to address her financial problems since May 2002. Ms Pentland is a financial counsellor with Eastern Access Community Health. Her statement confirms that the applicant works for Kodak Australia as an administrative assistant, earning $2700 net per month, and details the applicant’s expenditure and debts (a car loan of $22,000). It also states the following: that, by accessing her Malaysian superannuation moneys, the applicant could pay off her debts and have funds that she needs for her daughter's secondary schooling, which will commence in 2005; that in order to access the superannuation moneys the applicant must renounce her Malaysian citizenship and return to Malaysia to apply for and collect the funds; that the visit to Malaysia would also allow her to see her family who will provide the airfares for the applicant and her two children. The applicant intended to travel in November 2004 and the granting of Australian citizenship prior to this date would avoid the costs of renewing the family’s Malaysian passports and obtaining entry visas.
19. The Malaysian Government Passport and Travel Documents advice (Exhibit A3) is of relevance with respect to the granting of passports to persons under the age of 18 years. If the child's father is still alive, the father's identity card is required before a passport can be granted. But if the parents are divorced, the mother's identity card and the Court's Order for custody of the child suffice to meet the condition.
20. The details of the applicant’s superannuation moneys and the method of the "Leaving Country Withdrawal Scheme" are contained in Exhibit A5 and Exhibit A4, respectively. The balance of the applicant’s superannuation fund is approximately A$30,000 (RM81468.92). The "Leaving Country Withdrawal Scheme provides for withdrawal of savings by Application In Malaysia and by Application from outside Malaysia, the latter on provision of a valid passport or citizenship certificate and a receipt of surrender of the identification card issued by the relevant Malaysian department or a Malaysian Embassy or High Commission.
SUBMISSIONS
21. The respondent submitted that, while the Tribunal is not obliged to apply the policy formulated by the Minister (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60), it should ordinarily do so in the absence of cogent reasons against the application of the policy in question (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). In the applicant’s case there were no such reasons.
22. Section 13(4)(b)(iv) provides for the exercise of the Minister's discretion
…if the Minister considers the applicant would suffer significant hardship and disadvantage if a certificate of Australian citizenship were not granted… .
Clause 4.3.33 of the Instructions provides three situations where the hardship or disadvantage discretion would usually apply. These relate to employment, international travel and ineligibility to represent Australia at international forums. The parties agreed that the latter is not relevant.
23. The respondent submitted that there was no evidence that the applicant had ever been denied a job solely because she was not an Australian citizen. The applicant was working in the private sector as an administrative assistant, although she would prefer to work in the public sector. The respondent relied on authority of Re Waiba and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 668 where the facts were similar.
24. The applicant and her children are entitled to a Malaysian passport. The only reason she has not applied for a passport is because of the cost. The respondent submitted that eligibility for a travel document is sufficient to find that an applicant is not excluded from international travel. In Re Wong and Minister for Immigration and Ethnic Affairs (1996) 41 ALD 672 (at 682) Purvis J found that, "…having to apply for a visa amounts to anything more than inconvenience".
25. While the applicant is the spouse of an Australian citizen, the respondent noted she had not answered question 35 in her application (T4). However, given that she is married to an Australian citizen, clause 4.5.2 of the Instructions refers to significant hardship or disadvantage being the same as that under clause 4.3.33, which has already been considered under s 13(4)(b)(iv) of the Act.
26. Finally, the respondent submitted that the applicant's purported financial hardship is not of such significance as to attract the exercise of the discretion and displace the usual operation of the Instructions. The usual operation of the Instructions does not consider financial hardship as a cogent reason to grant Australian citizenship. Based on her evidence, the applicant’s family will pay the airfares of the applicant and her children to travel to Malaysia and they will live with her parents while in Malaysia. Should travel to Malaysia become urgent for the applicant due to the ill-health of her family, the applicant’s family should be able to provide the $300 to $400 required to pay for the travel documents, particularly as the applicant would be in a position to refund the money once she had accessed her superannuation moneys in Malaysia.
27. Ms Pentland submitted that the applicant should be granted Australian citizenship five months short of her eligibility date to enable her to access her superannuation moneys and to visit her family in Malaysia. A departure date in November 2004 would allow the applicant to spend four weeks, during the school holidays, with her family without it interfering with her daughter commencing secondary school in 2005. In contrast, a departure after 17 January 2005 would limit their stay in Malaysia to two weeks. Ms Pentland submitted that there were potential difficulties in obtaining Malaysian passports for the applicant’s children.
CONSIDERATIONS AND DECISION
28. The Tribunal is unable to identify any cogent reason why it should deviate from the policy enunciated in the Instructions. The applicant is working full‑time in the private sector and, while she would prefer to work in the public sector, this is a preference. There is no evidence that her failure to obtain public sector employment has been solely due to her not being an Australian citizen.
29. The applicant is entitled to Malaysian travel documents (passport and any relevant re‑entry visas) on application, but the cost of these would be approximately $300 more than the cost of Australian passports.
30. The Tribunal notes that Ms Pentland's evidence is that she first saw the applicant in May 2002 with respect to her financial difficulties. The applicant gave evidence that her husband had contributed financially to the family's upkeep prior to March 2004. While the Tribunal has noted that the applicant had financial problems in May 2002, the absence of evidence regarding this point has led the Tribunal not to consider the matter further. However, the Tribunal does note that the applicant and her husband are no longer living together and, if the marriage no longer exists, this would impact on her eligibility for Australian citizenship unless a declaration is signed by both parties to the effect that the marriage subsists (Instructions 4.5.2).
31. The applicant is employed. She can travel internationally whenever she likes provided she obtains a Malaysian passport. While she may have some financial problems, the applicant has access to superannuation moneys in Malaysia and is in receipt of a net income of approximately A$32,400 per annum. The Tribunal has no knowledge as to whether financial support is provided by the father of the applicant’s children.
32. The applicant’s parents have agreed to pay the airfares for the applicant and her children to visit Malaysia and, presuming her accommodation will also be provided by her parents, the cost to the applicant of a trip to Malaysia would be about $300 to $400.
33. Based on the evidence before it, the Tribunal concludes that the applicant’s claim of financial hardship and the need to travel to Malaysia, in order to access her superannuation entitlements and visit her parents and elderly grandmother, do not fall within the Minister's exercise of discretion. Nor is there any reason for the Tribunal to depart from the Instructions.
34. The decision under review should be affirmed.
I certify that the thirty‑four [34] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 9 August 2004
Date of Decision: 15 September 2004
Solicitor for the applicant: Nil — SELF‑REPRESENTEDSolicitor for the respondent: Mr S. Small, Australian Government Solicitor
0
2
0