Lin and Minister for Immigration and Multicultural Affairs

[2001] AATA 881

DECISION AND REASONS FOR DECISION [2001] AATA 881

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q01/457

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      LU LIN         
  Applicant
           And    MINISTER FOR IMMIGRATION  AND MULTICULTURAL AFFAIRS       
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member      

Date16 October 2001

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction of the Tribunal that Australian citizenship be conferred upon the applicant Lu Lin.     

(Sgd)          DP BREEN  
  PRESIDENTIAL MEMBER

CATCHWORDS
IMMIGRATION - citizenship - discretion to confer Australian citizenship.

Australian Citizenship Act 1948 ss 13(1), 52A(1)(a)

REASONS FOR DECISION

16 October 2001     Deputy President DP Breen, Presidential Member                  

1. On 16 October 2001, constituting the Tribunal sitting alone, I heard an application for review of a decision of a delegate of the respondent Minister to refuse the applicant Lu Lin's application for a grant of Australian citizenship.

2. The applicant was represented by her husband, Mr G Runnegar and the respondent Minister by Mr T Boyd, Solicitor of Messrs Blake Dawson Waldron. 

3. Mr Runnegar said that the application was based on hardship grounds.  When I asked him to define the nature of the hardship he said:

   "The hardship is that….I became unemployed.  I searched around for a lot of jobs.  I worked in a kitchen place for no money basically on commission only….Then I had an opportunity to work in Papua New Guinea as an architect, which is my profession, and I took that up.  I went there for short term employment which …. extended out to around 18 months with the first company, and then I was offered another job to manage an architectural firm in New Guinea, which I took up.  I am 54 years old.  I have great difficulty in getting any employment in Australia….We are separated continually because of the situation and really that is the hardship."

Later on he said:

"The only way to settle our lifestyle is for Lucy to get residency or permanent citizenship so that she can come and join me and when I finish up there I can come back here without further drama."

1. The applicant is a 59 year old female who was born in China on 12 October 1942. 

2. There is a discretion under subsection 13(1) of the Australian Citizenship Act 1948 to grant a certificate of Australian citizenship to a person who satisfies the requirements of the Act including that the applicant has been a permanent resident for the period defined therein.  There is also a discretion to shorten that period in certain circumstances including circumstances of hardship.  There are Ministerial Guidelines that identify certain circumstances which could be considered to constitute hardship or disadvantage but of course these are policy guidelines and the list of circumstances defined in them does not purport to be exhaustive.

3. Decisions of the kind involved in this case are reviewable by the Tribunal pursuant to subsection 52A(1)(a) of the Australian Citizenship Act.  A review by the Tribunal of such a decision vests in the Tribunal the discretion to which I have already referred.

4. At the end of proceedings on 16 October 2001 I said:

   "…I am persuaded to exercise the discretion that now vests in me in favour of the applicant.  So the decision of the Tribunal will be to set aside the decision under review and to remit the matter to the respondent Minister with a direction of the Tribunal that Australian citizenship be conferred upon the applicant Lu Lin….
   … I am persuaded in favour of the applicant in order to preserve the integrity of this marriage.  I take Mr Runnegar's point that if his wife lives with him in New Guinea, and it is a normal condition for a wife to live with her husband, and he can't get employment in this country but he can in New Guinea, then it will be a long time before she will qualify if strict application of the time limits are imposed upon her."

5. Accordingly, that is the decision of the Tribunal and those are the reasons upon which it is founded.

   I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

   Signed:         Denise Burton
     Secretary

   Date/s of Hearing  16 October 2001
   Date of Decision  16 October 2001
   Rep. for the Applicant              Mr G Runnegar, applicant's husband
   Solicitor for the Respondent    Mr T Boyd, Messrs Blake Dawson Waldron