Komar and Minister for Immigration and Multicultural Affairs
[2006] AATA 202
•7 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 202
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/803
GENERAL ADMINISTRATIVE DIVISION
Re: ROCHELLE VINCENTE KOMAR
Applicant
And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date: 7 March 2006
Place: MelbourneDecision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Senior Member
CITIZENSHIP ‑ application for Australian citizenship ‑ failure to satisfy residence requirements - singer/songwriter/performer - promotion of Australia - whether activities outside Australia beneficial to the interests of Australia - whether hardship would be suffered - exercise of discretion
Australian Citizenship Act 1948 s 13(4)(b)(i), 13(4)(b)(ii), 13(4)(b)(iv)
Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 41 FCR 82
Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT No. S91/205), 15 October 1991
Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664
Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs
(1993) 30 ALD 447
Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762
Re Tsui andMinister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236
REASONS FOR DECISION
7 March 2006 G.D. Friedman, Senior Member
1. Rochelle Komar was born on 11 February 1972 in Austria and is based in London, where she works as a singer/songwriter/performer in dance music. She is seeking Australian citizenship after growing up in Melbourne as a permanent resident.
2. Ms Komar does not satisfy the normal residence requirements for citizenship. The issues before the Tribunal are whether she was engaged in activities outside Australia that were beneficial to the interests of Australia, or whether her circumstances would justify exercise of the discretion in her favour under the hardship provisions of the Australian Citizenship Act 1948 (the Act).
WAS MS KOMAR ENGAGED IN ACTIVITIES BENEFICIAL TO THE INTERESTS OF AUSTRALIA?
3. Section 13 (4)(b)(i) of the Act provides that:
(b) … 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. Ms Komar told the Tribunal that her parents migrated to Australia and she has lived here for 31 years. Approximately nine years ago she began pursuing her career in dance music as a performer at the international level. She emphasised that although she was born in Austria, her home has always been in Australia. Ms Komar described her background in the performing arts, and explained that she was forced to leave Australia because her opportunities in Australia were limited.
5. Ms Komar said that she has achieved success in her chosen field, particularly since the beginning of 2005, and she has contracts in the recording industry and for live performances in Europe. She has established her own website on which she describes herself as Austrian/Australian. Ms Komar stated that she wishes to gain Australian citizenship because her Austrian citizenship allows dual citizenship only until the end of 2006. She also stated that she has always identified as Australian because of her family connections and because she was raised in Australia. She claimed that she has contributed to Australia because for ten years she has been contracted to the Australasian Performing Right Association (APRA). APRA collects and distributes Australian and New Zealand copyright royalties for music creators and publishers from around the world. She produced a remittance advice from APRA dated 16 December 2004 in the amount of $163.29, and said that she receives a similar amount quarterly. Ms Komar asked the Tribunal to conclude that that funds collected by APRA assist in the promotion of the Australian music industry, so that her contribution is of direct benefit to Australia.
6. In respect of other aspects of her contribution to Australia, Ms Komar explained that she has been licensing her music to Australian artists and employed the services of two Australian music producers on a casual basis in late 2004 and 2005. She said that for several years she has supplied her music to Australian radio stations, music shops and distributors, and she has created artistic opportunities by providing promotional music for re-mixing. She has also conducted interviews with Australian journalists in the music industry media.
7. Under cross-examination Ms Komar agreed that she has not been appointed by any Australian government or private organisation in a representative or ambassadorial role. However, she said that her knowledge and experience could be useful in training or advising Australian artists in the future. She also suggested that her efforts in helping her mother write a book about living with a disabled child, represent an activity of benefit to Australia because the book assists families of disabled children and promotes a greater understanding of the issues.
8. Ms Komar’s mother, Mrs T. Komar, told the Tribunal that Ms Komar identifies herself in Europe as Australian and is beginning to contribute to Australia by succeeding in the music industry and making Australia proud of her efforts. Mrs Komar stated that Ms Komar is genuine in her desire to become an Australian citizen and to live permanently in Australia when her career makes this possible. Ms Komar’s music industry lawyer said that Australia would benefit from having a creative artist who achieves success in the United Kingdom.
9. In relation to whether Ms Komar has engaged in activities outside Australia that are beneficial to the interests of Australia, the Tribunal notes that in Re Ho and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 664 the Tribunal held, at paragraph 27:
…The discretion contained in s 13(4) is not intended to offer an alternative method of complying with s 13(1)(d) and (e). It is intended to allow some flexibility, in exceptional circumstances, when specific activities, which are the applicant’s substantial activities during specific periods, can be demonstrated…
There must be some objective public benefit to Australia, rather than the private interest of the person (Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 41 FCR 82); and the benefit should be largely as a result of an applicant’s activities at the time they were undertaken, rather than a time in the future (Re McCarthy and Minister for Immigration, Local Government and Ethnic Affairs (1993) 30 ALD 447). In Re Fraser and Minister for Immigration, Local Government and Ethnic Affairs (AAT No. S91/205, 15 October 1991) the Tribunal held that activities beneficial to the interests of Australia refers to the public interests of Australia such as activities that will achieve recognition of Australia or increase international respect and goodwill for Australia.
10. The Tribunal acknowledges that Ms Komar is a talented performing artist who left Australia in pursuit of greater career opportunities in Europe. She has had success in areas such as; the acceptance of her music, live performances and sales of her recordings, particularly in the past twelve months. Her website promotes her as an Austrian/Australian performer, but makes little mention of her role as an Australian, or the impact of her Australian background on her success as a performer.
11. The Tribunal takes into account that APRA plays an important role in promoting Australian artists. However, on her own evidence Ms Komar’s actual payments to APRA by way of a percentage of her royalties are extremely small. Therefore, any contribution she makes to the development of Australian talent by this means is too remote and indirect to be given any weight when considering the exercise of the discretion (Re Pai and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 762). This also applies to her contribution in making her music available to Australian radio stations and producers; the casual employment of two Australian producers either shortly before or after her application for citizenship; and the contribution to her mother’s book.
12. As a self-employed artist Ms Komar receives the majority of her remuneration through the sale of her recordings, live performances and other activities connected with the production of her dance music. Consequently her activities may properly be characterised as furthering her private interests, rather than some objective benefit to Australia. She has not demonstrated any tangible benefit to Australia, such as the promotion of export sales or development of overseas markets, the creation of employment or enhancement of the reputation of Australian companies against overseas competitors. There is no close nexus between Ms Komar’s overseas activities as a performing artist and subsequent benefit to Australia (Re Tsui andMinister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 236).
13. For these reasons the Tribunal finds that at the date of her application for citizenship on 12 January 2005 Ms Komar was not engaged in activities outside Australia that were beneficial to the interests of Australia. As a result the discretion in s 13(4)(b)(i) of the Act to treat the period she was not in Australia as a period that she was in Australia should not be exercised.
DO THE HARDSHIP PROVISIONS APPLY TO MS KOMAR?
14. Section 13(4)(b) of the Act provides:
…the Minister may, in the Minister’s discretion:
…
(ii)treat a period ending before the period of 5 years referred to in paragraph (1)(e), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years;
(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;
…
15. Paragraphs 4.3.32 and 4.3.33 of the Australian Citizenship Instructions (ACI) provide that the circumstances for the exercise of the discretion in s 13(4)(b)(ii) of the Act are situations of hardship or disadvantage.
16. Ms Komar told the Tribunal that she returns to Australia each year for about one month to see her family and friends. She said that her parents are getting older and she needs to be able to spend as much time as possible with them, particularly as they are on their own following the death of their disabled son in 2001. She referred to her father’s medical condition following a back injury, and said that her mother has health problems. Ms Komar stated that she made her application for citizenship as soon as the Austrian Government allowed dual nationality in 2004, but that when this opportunity expires in 2006 she faces uncertainty because her visa for permanent residence in Australia expires in July 2006.
17. Ms Komar agreed that her permanent residence visa is likely to be renewed for a further five years, which will enable her to continue to make unlimited trips to Australia. Mrs Komar described her own medical condition as all right and said that she takes prescribed medication.
18. The Tribunal takes into account that Ms Komar’s parents are Australian citizens and that they support her application. However the Tribunal notes that she has held Australian permanent residency for 31 years; she is able to travel to and from Australia freely to see her parents; and there is no suggestion that her visa will not be renewed in July 2006. Her Austrian passport is valid for travel until 18 June 2011, which enables her to remain in Europe to pursue her career as necessary, although the Tribunal notes that she has stated that she wishes to live permanently in Australia in the future.
19. The Tribunal takes into account that Ms Komar is an Australian permanent resident who may continue to exercise all relevant rights and privileges, including travel to and from Australia. Her employment and career as an international performing artist are not jeopardised by the refusal of her application, and there is no evidence that she would suffer significant hardship as a consequence of any impact on her Austrian citizenship. On balance the Tribunal finds that the matters raised by Ms Komar do not constitute situations of hardship or disadvantage or significant hardship or disadvantage that would justify the exercise of the discretion in s 13(4)(b)(ii) or s 13(4)(b)(iv) of the Act in relation to periods spent in Australia.
DECISION
20. The Tribunal affirms the decision under review.
I certify that the preceding twenty [20] paragraphs are a true copy of the reasons for the decision of:
G. D. Friedman, Senior Member.
(sgd) Lydia Zozula
Associate
Date of hearing: 23 February 2006
Date of decision: 7 March 2006
Advocate for the applicant: Self-represented
Advocate for the respondent: Ms Xuelin Teo
Solicitor for the respondent: Clayton Utz
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