Minister for Immigration, Local Government and Ethnic Affairs v Roberts
[1993] FCA 125
•10 MARCH 1993
Re: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
And: MARK NIGEL ROBERTS
No. WAG40 OF 1992
FED No. 125
Number of pages - 14
Immigration
(1993) 113 ALR 151
(1993) 17 AAR 266
(1993) 41 FCR 82
(1993) 29 ALD 656
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Einfeld J.(1)
CATCHWORDS
Immigration - citizenship - whether the applicant's employment on an oil rig constituted activities "beneficial to the interests of Australia" within the meaning of section 13(4)(b)(i) of the Australian Citizenship Act (1948)
Words and Phrases - "beneficial to the interests of Australia"
Australian Citizenship Act (1948) section 13
Re Dainty v the Minister for Immigration, Local Government and Ethnic Affairs (1987) 6 AAR 259
HEARING
PERTH, 7 July 1992
#DATE 10:3:1993, SYDNEY
Counsel and solicitor for Applicant: Mr P. Roberts instructed by
Australian Government Solicitors
Counsel and solicitor for Respondent: Mr S. Ellis instructed by
Freehill Hollingdale and Page
ORDER
1. The appeal is allowed. 2. Any application for costs to be made in writing within 28 days.
Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.
JUDGE1
EINFELD J. In this case the Department of Immigration, Local Government and Ethnic Affairs (the applicant) appeals from the decision of the Administrative Appeals Tribunal of 28 February 1992 (the decision). In the decision the Tribunal set aside the refusal by the applicant to grant citizenship to the respondent, Mark Roberts.
The respondent arrived in Australia on 6 December 1964 at four years of age. He was schooled in Australia and permanently resided here for more than 20 years, but he never took out Australian citizenship. Relevantly for the purposes of this appeal, he left Perth for overseas on 30 July 1989 and returned on 2 October 1990. The purpose of this trip was stated by the respondent to be for a holiday although the evidence shows that for a large part of the time, namely December 1989 to July 1990, he worked as a rigger in Great Yarmouth for a company called Scaffolds of Great Britain. When the respondent returned to Australia, he was engaged by a British company Mahhor Marine whose oil rigs were based in Brunei. The respondent left Australia for this employment on 19 November 1990, returning on 29 March 1991.
On 24 April 1991, whilst in Australia, he lodged his application for citizenship which was subsequently refused on 2 May 1991 by Mr Gurren, an officer of the applicant's department to whom the decision was delegated. It is the overturning of this refusal by the Tribunal that this appeal challenges. The applicant alleges that the Tribunal erred in law in a number of respects in finding that the respondent's overseas employment in oil rig construction constituted activities "beneficial to Australia" within the meaning of s.13(4)(b)(i) of the Citizenship Act 1948.
It should first be stated that this matter is now quite academic. Whatever the result of this case, Mr Roberts will by now have well and truly qualified for citizenship. Moreover, as an Australian permanent resident, there is no suggestion that he could or should be deported. In response to questioning from me, the appellant Minister justified the extensive expenditure of this litigation and its undoubted stress to the respondent on the basis that he was seeking a judicial exposition of the law relevant to matters of this nature. Australian Courts have always been opposed to providing judicial advice in the guise of resolving genuine disputes, however important the issues. This case is at best a borderline case of this kind but I shall proceed with it. However, my views should only be taken as reflecting and seeking to meet the Minister's request as at the time the application fell to be considered and not as making a finding as to any matter of present status that should be given to Mr Roberts.
Section 13(1) of the Australian Citizenship Act (1948) (the Act) sets out the criteria which must be met by an applicant for Australian citizenship:
(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:
(a) the person is a permanent resident;
(b) the person has attained the age of 18 years;
(c) the person understands the nature of the application;
(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;
(f) the person is of good character;
(g) the person possesses a basic knowledge of the English language;
(h) the person has an adequate knowledge of the English language;
(i) the person has an adequate knowledge of the responsibilities and privileges of Australian citizenship; and
(j) if granted a certificate of Australian citizenship, the person is likely to reside, or to continue to reside, in Australia, or to maintain a close and continuing association with Australia.
There is no dispute that Mr Roberts complied with all the provisions of this subsection except paragraph (d). The evidence does not permit a finding of the facts needed to support paragraph (e) but it is not necessary to address those matters here.
For the purposes of section 13(1)(d), the relevant two year period in relation to the respondent's application was 24 April 1989 to 24 April 1991. It is clear that Mr Roberts did not satisfy this provision as he did not spend a period of one year physically present in Australia within this time.
However, two additional provisions of the Act relate to section 13(1)(d). The first is section 13(1A) which provides:
(1A) The Minister shall not grant a certificate of Australian citizenship to a person under subsection (1) at a time when the person is not present in Australia unless:
(a) the person is a permanent resident; and
(b) the Minister considers that the person is engaged in activities outside Australia that are beneficial to the interests of Australia.
This provision was not specifically considered by the Tribunal, presumably because the application was made and considered when Mr Roberts was in Australia. However, it did consider a similar concept in another provision relevant to the problem at hand. Section 13(4)(b)(i), which directly relates to section 13(1)(d), provides:
For the purpose of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship:
(a) ... (not relevant to the present facts)
(b) subject to paragraph (a), 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; .....
It is the interpretation of subparagraph (i) which is the subject of this appeal. The question to be decided is whether the Tribunal erred in law in its interpretation of the phrase "engaged in activities ... beneficial to the interests of Australia" and whether it took into account irrelevant matters, or failed to take into account relevant matters, in relation to its finding that Mr Roberts' activities satisfied this provision.
When making his decision in this case on the meaning of "beneficial to Australia", the delegate of the Minister relied squarely on a statement of Ministerial policy found in paragraph 3.8.3 of the Australian Citizenship Instructions which reads as follows:
3.8.3 The Minister has decided that citizenship will normally not be granted to people seeking the application of his discretion under section 13(4)(b)(i) while they are overseas. Periods of overseas residence will only be treated under this section, as if they were periods spent in Australia, provided applicants are able to satisfy the Minister or his delegate that:
(a) either for an extended period or on a regular short term basis, they were required to work overseas by a Federal or State Department, semi-government authority or private employer, or they were self-employed and frequent travel abroad was essential to the successful operation of their business; or
(b) they were 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 by prominent persons associated with their field of endeavour e.g. people engaged in aid programs, artists and entertainers of world standing; and
(c) they had established a prior primary identification with Australia and intend to continue to live in Australia. Relevant factors in determining whether they identify permanently with Australia include whether they can show they have commitments here such as substantial assets, close ties with the business community, or family members established in the country and that those commitments outweigh those which they have in any other country.
If this policy is to be the guideline for decision-making in this field, it is clear that either (a) or (b) must be satisfied in conjunction with (c). As a result, it would appear that even if a person applying for citizenship could establish, pursuant to (c), "a prior primary identification with Australia" and an intention to continue to live here, as was the case with Mr Roberts, that person would not qualify under 3.8.3 unless (a) or (b) was also satisfied.
Neither of the alternative requirements of (a) has any relevance to the facts of this case. Moreover, although there was some evidence that Mr Roberts' employment was of some vague "benefit" to Australia, like the happiness of his family as Australian citizens/residents, no specific evidence was led to satisfy the requirement of (b) that his activities were of a "social, cultural, economic or political nature which are clearly beneficial to the interests of Australia", or that Mr Roberts was a prominent person associated with his field of endeavour. Indeed the Tribunal itself stated at paragraph 23 of its Reasons for Decision:
If the Tribunal were confined to the kind of factors indicated in sub-paragraph 3.8.3(a) and (b), Mr Roberts' chances of meeting the criteria there set forth would be fairly borderline or marginal. In this regard, the question arises as to whether the criteria set forth in the policy are appropriate to his circumstances.
And at paragraph 27:
The Tribunal accepts, as mentioned in paragraph 24 above, that the guidelines furnished in paragraph 3.8.3 are unquestionably appropriate in the case of someone whose associations with this country are of relatively recent origin. However, when evaluating circumstances for the purpose of exercising the discretion to grant or refuse citizenship and whether the activities engaged in by the applicant should be considered beneficial to the interests of Australia, the significance of particular activities may assume a greater weight when taken into account with other relevant factors.
I agree with the Tribunal that it is quite anomalous, even a trifle absurd, that a person who has lived legally in Australia for more than twenty years and is to all intents and purposes an Australian has to pass arbitrary tests for citizenship. It seems at least odd for example that an Australian in all but law who leaves the country for temporary work, say because of economic downturn and shortage of work here, loses the benefit of his loyalty and connection to Australia over a lifetime in counting towards citizenship. By comparison, a complete newcomer can be here for two years and qualify even though intending to leave the country immediately after.
Nonetheless that is what the guidelines in effect prescribe. In my opinion the Tribunal erred in its interpretation of the Ministerial Policy in finding that paragraph 3.8.3(a) and (b) were merely discretionary factors. However, this is not the end of the question, as the Tribunal is not bound to apply a practice or a policy adopted by a decision-maker. This issue was considered by Justice Davies when President of the Tribunal in Re Dainty v the Minister for Immigration, Local Government and Ethnic Affairs (1987) 6 AAR 259 where his Honour stated (at 267):
I accept that, in the exercise to discretions under the Australian Citizenship Act 1948, the Tribunal ought generally to apply guidelines or policies which have been established by the Minister of State for Immigration and Ethnic Affairs. Such policies can only be adopted by the Minister. He has the experience and advice and the power to formulate such policies and he is able to take responsibility in Parliament should the policies be found wanting.
But to say that, is not to say that the Tribunal ought to treat policy as more than policy. Policy is not a legislative prescription and, though in many cases it will be appropriate to apply policy in all or almost every case, there are circumstances where it is not appropriate to decide a matter merely by reference to a policy which has been laid down.
Therefore all factors that are relevant should be taken into account and their consideration should not be denied because they fall outside guidelines which have been prepared. That is not to say, however, that any factors can be taken into account - the Tribunal and indeed any decision-maker is necessarily constrained by the legislation itself. Whether the legislation is satisfied is a question of law and not a matter of discretion.
The words "beneficial to the interests of Australia" are not defined in the legislation and must be construed according to their ordinary meaning. At paragraph 21 of its Reasons for Decision, the Tribunal noted in passing:
... that in terms of the established ties with the country exhibited in sub-paragraph (c) the balance tilts heavily in the applicant's favour.
And at paragraph 22:
"Beneficial" is a term which requires evaluative judgment and it is linked to the concept of "the interests of Australia". In this respect the notion of "Australia" is somewhat ambiguous. It would seem to embrace a wide sense of what is beneficial to the Australian community at large rather than any narrow sense of the national interest.
At paragraph 30 the Tribunal concluded:
Coming then to the issue, does the Tribunal consider that Mr Roberts' activities in oil rig construction are relatively beneficial to the interests of Australia? Having regard to -
(i) the importance of oil rig construction in terms of national resource policy
(ii) the desirability of having Australian citizens engaged in it;
(iii) the length of Mr Roberts' prior association with Australia;
(iv) his strong family connections with this country;
(v) the likelihood of those associations continuing, particularly if he is granted citizenship so that he is enabled to readily return to this country to maintain those associations;
the Tribunal considers that Mr Roberts' activities in oil rig construction overseas during the two year period prior to his application were beneficial to the interests of Australia.
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 requires some objective benefit to Australia.
The importance to Australia of the Australian oil industry cannot be doubted. Although there was no evidence in this case on the specific importance of the construction of oil rigs, it was reasonably open to the Tribunal to find that oil rig construction, as an intrinsic part of the Australian industry, is itself a benefit to Australia. But it is quite another matter as to whether the construction of rigs in the United Kingdom and Brunei represent any such benefit, still less whether Mr Roberts' work as a rigger at those places was advantageous to this country. To reach such conclusions, some evidence would have been required demonstrating the benefits propounded. For example, if the person concerned was studying or using new techniques or materials with a view to introducing them to Australian construction, or if he was taking Australian technology to these places, the benefits would be established. If it was established that experiences overseas increased the particular person's chances for remunerative work and advancement in the industry in Australia, a relevant advantage may well be evidenced. Even if the particular person paid Australian tax on the wages earned in such places, Australia might derive some benefit. Unlike the Tribunal, I regret being unable to see the nexus between Mr Roberts' overseas work and our natural resource and employment policies. I therefore cannot agree that the two conclusions reached by the Tribunal in this connection addressed relevant issues as defined by the statute.
Family ties and a close association with Australia are in a similar category. Although relevant to the application by virtue of section 13(1)(j), these matters are in my opinion not relevant to the consideration of whether activities overseas are "beneficial" to Australia. These aspects are only important considerations if the Act says so. Paragraphs (d) and (e) of section 13(1) are designed to address the "association" question but there is no reference to "family connections". Without specific evidence, I can see no benefit to Australia, as distinct from some happiness and contentment of the family concerned, and perhaps the general desirability of permanent residents undertaking the obligations of citizenship, from Mr Roberts becoming a citizen as distinct from a permanent resident. Australia might be advantaged in some relevant objective way if for example an elderly or sick family member or friend could be kept off social welfare or did not need public facilities because the applicant for citizenship could by undertaking work overseas be enabled to perform any required caring personally. But citizenship is not necessary for this purpose if permanent residency has already been granted. Moreover, if such circumstances existed here, citizenship might well have been applied for earlier than is the case and the person concerned would probably not have been undertaking work overseas.
As to the matter of "continuing association" mentioned by the Tribunal, there was no evidence that Mr Roberts as a permanent resident has ever suffered any hardship in leaving and returning to Australia at will. If he has, it is presumably because of the law relating to the movements of permanent residents which is not being reviewed in this case. There is nothing in section 13(1) which makes this consideration relevant to citizenship. In fact, in logic it could not do so because the Act treats citizenship as conveying a benefit on permanent residents applying for citizenship which they do not otherwise possess.
In these respects I think that the Tribunal erred in law in its interpretation of the phrase "engaged in activities ... beneficial to the interests of Australia" within the meaning of section 13(4)(b)(i) of the Act. The considerations which it used to justify its finding that the respondent's overseas employment in oil rig construction constituted such activities were irrelevant to the determination required by the statute.
Accordingly, the appeal will be allowed, the decision of the Tribunal set aside, and the matter remitted to the Tribunal for further consideration according to these reasons for judgment. If a costs order is sought by either party, as seems inappropriate, application may be made and opposed by written submissions filed and served within 28 days.
2
2
0