Latiff and Minister for Immigration and Multicultural Affairs

[2000] AATA 1158

DECISION AND REASONS FOR DECISION [2000] AATA 1158

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/357

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      NAZRY ABDUL LATIFF  
  Applicant
           And    MINISTER FOR IMMIGRAITON AND MULTICULTURAL AFFAIRS          
  Respondent

EX TEMPORE DECISION

Tribunal       Deputy President J Block  

Date13 December 2000

PlaceSydney

Decision      The decision under review is affirmed.   
  ...............[sgd. J Block]..............
  Deputy President
CATCHWORDS
CITIZENSHIP – where applicant does not meet permanent residency requirements - whether engaged in activities overseas that are beneficial to the interests of Australia

Australian Citizenship Act 1948 – subsections 13(1)(d), 13(1)(e), 13(4)(b)(i)

Australian Citizenship Instruction 1997 – clauses 4.5.12, 4.5.13, 4.5.14, 4.5.15, 4.5.17, 4.5.21

Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Ho and Minister for Immigration & Ethnic Affairs (1994) 34 ALD 664
Re McCarthy and Minister for Immigration, Local Government & Ethnic Affairs (1993) 30 ALD 447
Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 113 ALR 151

REASONS FOR (EX TEMPORE) DECISION

13 December 2000  Deputy President J Block  

1. The decision under review is the refusal by the Respondent of the Applicant's application dated 19 October 1999 for the grant of Australian citizenship under section 13 of the Australian Citizenship Act 1948 ("the Act").

2. (a)      The Applicant was represented by Mr Rajlachumanan Thevar of Thevar & Associates, solicitors, while the Respondent was represented by Mr Matt Grey of the Australian Government Solicitor.
   (b) The Tribunal had before it the T Documents and also Supplementary T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Because the Supplementary T Documents are not numbered sequentially, after the T Documents, references to the T Documents are preceded by the letter "T", while references to the Supplementary T Documents are preceded by the letters "ST". The decision in this matter was made by a delegate of the Respondent Minister; so that the Minister of Immigration & Multicultural Affairs is cited as the Respondent, notwithstanding references in the T Documents to the Department of Immigration & Multicultural Affairs as the Respondent.

3. The issue before the Tribunal falls within a narrow compass; it is encapsulated in the Respondent's statement of reasons dated 13 April 2000 (ST1), clauses 1, 2 and 3 of which read as follows:

   1        BACKGROUND

   1.1Mr Abdul Latiff applied, on 19 October 1999, for the grant of Australian Citizenship under section 13 of the Australian Citizenship Act 1948. He had been granted a permanent visa on 10 April 1988.

   1.2The relevant head of power in section 13 in this case is subsection 13(1).

   2        FINDINGS OF FACT AND ASSESSMENT

2.1Normal residence requirements.

2.1.1The criteria for approval under section 13(1) include that the Applicant at least two years out of the five years immediately before applying and one year during the two years immediately before applying: See section 13(1)(d) and (e).

2.1.2Mr Abdul Latiff did not meet the first of these requirements: days in Australia in two years before applying 257.

2.2Discretion to count periods outside Australia towards residence requirements.

2.2.1Mr Abdul Latiff sought the exercise of section 13(4)(b)(1) which gave me a discretion to count periods spent outside Australia as a permanent resident "engaged in activities beneficial to the interests of Australia" towards the residence requirements.

2.2.2Mr Abdul Latiff based his claim around his work as a pilot for Singapore Airlines.  He commenced employment as a cadet pilot in November 1996 and he stated that his employment allowed him to gain skills that would be of future benefit to Australia.

2.2.3I found that this claimed benefit to Australia was residual, remote, indirect and speculative and related to future benefits, potentially accruing to Australia and therefore did not warrant exercise of the discretion.

2.2.4I therefore found that the residence requirements under section 13(1) were not satisfied.

3        DECISION

3.1I therefore refuse the application for grant of Australian citizenship.

1. It is clear, then, that the only issue to be considered by the Tribunal is as to whether the discretion contained in section 13(4)(b)(i) of the Act should be exercised in favour of the Applicant; that discretion in turn depends on whether the Applicant's period of service with Singapore Airlines post April 1998 can be said to constitute an engagement in activities beneficial to the interests of Australia.

2. The Applicant's evidence was that having failed to obtain employment with an airline in Australia, he sought and found employment with Singapore Airlines, firstly as a cadet and thereafter as a pilot.  In his letter to the Department of Immigration & Multicultural Affairs dated 22 October 1999 (T6) the Applicant said, inter alia:

   I am not married and do not have any dependents.  My father passed away on 9th April 1982, thus my family of three have remained close.  I would like to be reunited and retain the close ties I have with my family.
   I am bonded with Singapore Airlines for seven years effective from August 1999 as an Airline Pilot.
   When my contract with Singapore Airlines ends, I would like to return to Australia as an Australian Citizen and continue being employed.  I believe I have many skills that will be of great benefit to the country and look forward to the time when I can be of service to the Australian community.

1. The crisp question then is as to whether the skills gained by the Applicant as an employee of Singapore Airlines are such that they fall within the discretionary power conferred by section 13(4)(b)(i) of the Act.

2. (a)      The Australian Citizenship Instructions 1997 ("ACI") are relevant in relation to a matter of this nature.  I refer in this context to the decision of Brennan J in Re Drake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634, as to the role of ministerial policy as guidance for decision-makers.
   (b)      Clauses 4.5.12, 4.5.13, 4.5.14 and 4.5.15 are or may be relevant in a matter of this nature and all of these provisions have been considered accordingly.  During the hearing reference was made to 4.5.21 in the context of hardship; however, clause 4.5.21 of ACI is in its terms restricted in such manner that it entitles me in certain circumstances to count periods of residence in Australia, other than permanent residence, towards the residence requirements if the Applicant would otherwise suffer significant hardship or disadvantage.
   (c)       Mr Latiff spoke of potential hardship; it is conceivable that when his period of bond with Singapore Airlines comes to an end that he may not be granted permanent residence in Australia.  This does not seem very likely, given that he will then be a qualified pilot and that his closest relatives live in Australia.  However, it is unnecessary for me to consider whether indeed there is any hardship or potential hardship to the Applicant given that clause 4.5.21, in its terms, applies only in such manner that periods inside Australia can be treated as periods of residence in Australia even though the relevant applicant is not then a resident of Australia.
   (d)      Similarly, clause 4.5.17 was, at Mr Grey's suggestion, considered.  That provision of ACI confers a discretion to count permanent residence earlier than five years before application towards the "two years in five" residence requirement.  However clause 4.5.17, in its terms, does not apply to the "one year in two" residence requirement.

3. (a)      The evidence before me was that the Applicant took up residence in Australia in 1988 together with his mother and his brother; his mother and brother, who are his closest relations, bearing in mind that he is a bachelor, have become citizens of Australia.  I am prepared to accept that the Applicant intends at some time in the future to return to Australia; however, that day may be some time in the future given that it appears from T6 that the Applicant is bonded to Singapore Airlines for seven years as from August 1999.
   (b)      In the end the Applicant relies on the assertion that his experience with Singapore Airlines will be of benefit to him when he becomes ordinarily resident in Australia.  I accept, of course, that that experience may well be valuable, although there is no certainty that he will obtain employment in aviation when he comes to live in Australia; that will depend on circumstances at the time, probably in 2006, when his bond period with Singapore Airlines comes to an end.
   (c) In one sense any experience of whatever nature is potentially advantageous; however that is not in the sense which is intended by the Act.

4. In Re Ho and Minister for Immigration & Ethnic Affairs (1994) 34 ALD 664, Deputy President McMahon said 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.  The presence of the applicant in Australia for specific periods is one of the prerequisites to a grant of citizenship.  It is not an optional requirement interchangeable with certain activities outside Australia.

10.  In Re McCarthy and Minister for Immigration, Local Government & Ethnic Affairs (1993) 30 ALD 447, Deputy President McMahon said (at 448):

. . . having regard to the observations of Einfeld J in Roberts, the claim that the Applicant's employer has enhanced the reputation of its Australian parent company and Australian companies in general, must be regarded as falling short of demonstrating activities in which the Applicant was engaged that were beneficial to the interests of Australia.  Furthermore, having regard to the observations of Senior Member Gibbs in Re Tsui (1991) 245 ALD 236, it might also be said that such activities are so remote, indirect or speculative in relation to the beneficial interests of Australia that they could not be taken into account.

Further in Re McCarthy, Deputy President McMahon, in outlining the intent of the legislation, said (at 448):

The legislation requires an applicant to be engaged in activities beneficial to Australia.  In (Mr McCarthy's) case, his activities may provide a future benefit which is intangible.

11.  The judgment of Einfeld J in Minister for Immigration, Local Government & Ethnic Affairs v Roberts (1993) 113 ALR 151 is binding on me as to the meaning of the term "activities beneficial to the interests of Australia". In that judgment Einfeld J said (at 156):

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 [person applying for citizenship].  The section requires some objective benefit to Australia.

1. The Applicant's experiences of piloting in Singapore are, in objective terms, in the private interests of the Applicant. It may be that such experience will, in the future, be useful to the Applicant when he seeks to pursue a career as a pilot in Australia. There may be at that time, being a future time, an indirect flow-on benefit to Australia. However, that possibility is too remote and at all events insufficient to bring it within the ambit of the discretion referred to in section 13(4)(b)(i) of the Act.

2. It is unnecessary for me to deal with the provisions of ACI in any detail; I note though that clause 4.5.14(c) states that the discretion would not normally be exercised if the Applicant is overseas, and of course in this case, the Applicant is overseas.

3. Mr Thevar argued to me that the fact that Singapore Airlines flies into Australia and that it is an important airline in relation to Australia's network of air communications, is sufficient to constitute the necessary commercial benefit to Australia.  I cannot accept that this is so; it certainly does not constitute a real and tangible benefit provided by the Applicant who is after all, at this stage, an employee of Singapore Airlines, albeit as a pilot of a jet aircraft.

4. I accept, as did Mr Grey, that the Applicant's closest family ties are in Australia; I accept also that he intends to return to Australia.  I accept moreover that his personal ties are to Australia.  The Applicant is plainly a decent young man; this case is particularly unfortunate in that he could at some time in the past have applied for and obtained Australian citizenship, but, for reasons unknown to me, did not do so.  As Mr Grey pointed out, the period by which he falls short of the time requirements, is only about 100 days.

5. (a)      In summary, the evidence before does indeed indicate that the Applicant may at some future time, and probably in 2006, return to Australia.  I accept also that his experience as a pilot may well at that time, if he does return to Australia, benefit Australia.  In the meanwhile, though, he is gaining experience in his chosen profession, and that experience is essentially of a private nature.
   (b) In the circumstances, the decision under review must be affirmed. I note in conclusion that, in reaching this view, I do so with some reluctance. I am convinced that the Applicant will, when he returns to Australia, be an asset to Australia. However, and as the Act and ACI stand, I cannot set aside this decision which was correct under the law. I did suggest to Mr Grey that if there is any discretionary basis upon which relief could be granted to the Applicant, then certainly a grant of that relief would carry with it my positive recommendation. On the papers and evidence before me, I must affirm the decision under review.

   I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block.

   Signed:         ..........................[sgd. M Ryan]...........................
     Associate

   Date of Hearing  13 December 2000
   Date of Decision  13 December 2000 (ex tempore)
   Solicitor for the Applicant         Mr L Thevar, Thevar & Associates, solicitors
   Solicitor for the Respondent    Mr M Grey, Australian Government Solicitor