Miranda and Minister for Immigration and Citizenship
[2007] AATA 1566
•20 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1566
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1353
GENERAL ADMINISTRATIVE DIVISION ) Re COLLIN FRANCIS MIRANDA Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member M D Allen Date20 July 2007
PlaceSydney
Decision The decision under review is affirmed.
.............[sgd].................
M D Allen Senior Member
CATCHWORDS - application for review of decision for grant of Australian citizenship – lack of stipulated period of residence in australia – ministers discretion to regard period of absence as being residence if engaged in activities beneficial to Australia - decision under review affirmed
LEGISLATION
Australian Citizenship Act 1948 section 13(1)
Australia Citizenship (Transitionals and Consequentials) Act 2007
CASE LAW
Minister for Immigration v Roberts (1993) 41 FCR 82
Re Abraham and Department of Immigration and Multicultural Affairs (1997) 50 ALD 611
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re Tinamisan v Minister for Immigration and Multicultural Affairs (1996) 43 ALD 349
Re Khan and Minister for Immigration and Multicultural Affairs (unreported Tribunal decision No.12186; 5 September 1997)
REASONS FOR DECISION
20 July 2007 Senior Member M D Allen 1. By application made the 6th day of October 2006 the Applicant sought review of a decision by a Delegate of the Respondent that rejected his application for the grant of Australian Citizenship.
2. Paragraphs 13(1)(d) and (e) of the Australian Citizenship Act 1948 state inter alia that citizenship may be granted if the Applicant is a permanent resident and has been present in Australia as a permanent resident for a period or periods amounting to one year in the two years immediately prior to the application for citizenship and for a period or periods of not less than two years during the five years immediately proceeding the said application.
3. It was not disputed in these proceedings that whereas the Applicant met all the other criteria mandated by subsection 13(1) AC Act for the grant of Australian Citizenship he did not meet the requirements of paragraphs 13(1)(d) and (e). In fact in the previous five years the Applicant had spent a total period of 31 days only in Australia.
4. Notwithstanding the lack of the stipulated period of residence in Australia paragraph 13(4)(b) AC ACT states that the Respondent Minister has a discretion to regard a period of absence from Australia as being residence in Australia if during that period the Applicant was engaged in activities that the Minister considers beneficial to Australia.
5. The abovementioned provisions of the AC ACT apply to this application notwithstanding repeal of that Act. See section 10 of the Australian Citizenship (Transitionals and Consequentials) Act 2007.
6. The Applicant’s history is that he was born in Malaysia and first came to Australia in 1973 and completed his Higher School Certificate at St Patrick College Goulburn. He then completed a Bachelor of Economics at the University of New England.
7. The Applicant in 1977 went to the United Kingdom and undertook accounting studies and worked for chartered accounting firms. He returned to Australia to complete his CPA status. Whilst still in the United Kingdom he had been selected for an Audit Inspector’s position with the Auditor Generals Office in Papua New Guinea.
8. In 1986 the Applicant was granted a permanent residents visa and took up residency in Australia. From 1986 to 1988 he travelled for his employer to Papua New Guinea from a home base in Brisbane where he had purchased a dwelling house. The Applicant still retains ownership of that house although it is currently tenanted.
9. Whilst working in Australia in December 1988, the Applicant was offered a position with the United Nations in Papua New Guinea which ultimately he accepted. Later in 1990 he accepted a further position in Papua New Guinea for the World Bank and concerned with a project which was also jointly funded by Australia.
10. The Applicant then developed a career as a Consultant to the Asian Development Bank. This has involved him working in Asia and particularly in Central Asia as a Consultant for the ADB. He is not an employee of that organisation but acts as a contracted Consultant.
11. Considerable evidence was adduced as to the role of the ADB and the Applicant’s duties as a Consultant. Suffice it to say that the Applicant has considerable expertise in assisting Third World Countries prepare proposals for obtaining funding from the ADB for specific developments and then overseeing the management of any funds advanced by the Bank. Recent appointments carried out by the Applicant include consultancies to the governments of Uzbekistan, Kazakhstan and Kyrgyzstan. Previous appointments have taken the Applicant to Cambodia, Indochina and China.
12. The Applicant married in 1993. His wife is a citizen of Sri Lanka although the family has since 2000 maintained a permanent home in Malaysia. Originally the Applicant’s family accompanied him on his postings but by the year 2000 it was thought necessary to have a permanent base so that his three children might undertake formal schooling.
13. Currently the children are attending an international school in Malaysia that teaches to the British school curriculum. The decision to enrol the children in the international school despite good and less expensive Malaysian private schools was deliberately taken with the intention that the family would return to Australia and the children complete their education here.
14. The Applicant’s wife has an Australian Permanent Residents visa and is entitled to apply for a permanent residency of Malaysia but has not done so as she sees little point as it is the family’s intention to ultimately return to Australia.
15. In evidence the Applicant explained that currently while consulting for the ADB, which has its headquarters in the Philippines, it is preferable his family reside in Malaysia as it is central to the area into which he consults. He could carry out the type of work which he undertakes from Australia but this would involve considerably more travelling resulting in his seeing his family less frequently. I understand this point as it is obviously less distance to travel from say the Philippines or Central Asia to Malaysia rather than add the extra journey time to then travel on to Australia.
16. The Applicant stated that he had had the intention of moving back to Australia for the last 20 years but considered that it was only on his last visit to Australia in 2006 when he had come to Australia to purchase land on which to build a family home and had been alerted to the fact he may not be eligible for a resident return visa in the future that he had been spurred into applying for Australian Citizenship.
17. The Applicant has a role in ascertaining that funds expended by the Asia Development Bank on development projects are correctly applied to the designated purpose. He also has a role in preparing funding proposals. The ADB has a membership of some 60 countries, not all of them donor nations. Australia is a significant member of the Bank being its fifth largest shareholder and entitled to a permanent seat on the board of directors of the Bank. Australian firms also benefit to a significant degree by being awarded procurement contracts by the Bank, although the Applicant personally has no influence in the awarding of those contracts.
18. Currently the Applicant would have difficulty if he returns to Australia. His expertise is now in a narrow field and although he would be attractive to some employers such as AusAid he is prevented from applying for any public service position as he is not an Australian citizen. I concur with his observation that at his age and giving his area of specific expertise he would not be attractive to any private employer.
19. Apart from his activities for the ADB the Applicant has also been of assistance to Australian diplomatic staff. Mr Watkins, a former Foreign Affairs Official gave evidence of how the Applicant was of material assistance to Australian diplomats while he was contracted to Cambodian projects. Similarly while Australia has no representatives in Central Asia the Applicant is a source of information to the Australian embassy in Russia who has oversight of these regions.
20. The concept of activities beneficial to Australia was discussed by Einfeldt J in Minister for Immigration v Roberts (1993) 41 FCR 82 at 87. His Honour said:
“It seems to me that the term ‘activities beneficial to the interests of Australia’ means something in a nature of activities which provide some advantage to Australia, whether commercial or otherwise. The concept necessarily connects some public interests 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.”
21. I concur with the submission by the Applicant’s solicitor that the legislation does not require the benefit to Australia to be a direct benefit or confined to Australia alone.
22. The Respondent referred to the policy as set out in the Australian Citizenship Instructions sought to be applied in making a decision whether to exercise the discretion permitted by paragraph 13(4)(b) of the AC Act. Of that policy DP Mc Mahon said in Re Abraham and Department of Immigration and Multicultural Affairs (1997) 50 ALD 611 at 616:
“(21) It will be seen that the terms of both sets of guidelines bear little resemblance to the words of the statute in s 13(4)(b)(i)…
(22) The guidelines purport to add requirements additional to those of the statute. All that an Applicant need show in order to enliven the discretion, is that he was engaged in activities beneficial to the interests of Australia. In deciding whether the discretion will then be exercised benignly, it seems to me that it is not open to the minister to tack on further preconditions. Guidelines indicating the way in which a discretion will be exercised can be particularly useful to departmental officers and to applicants. The discretion to be exercised, however, is created by the terms of the statute and must be exercised consistently with the scope and purpose of the creating legislative phrase. Guidelines are appropriate in this case, where they indicate the way in which the minister will view periods spent in permitted activities. I do not consider that they are appropriate when they go beyond the terms of the statute and add qualifications which applicants must meet, which have not been considered by Parliament.”
23. That does not mean to say however that the guidelines can be completely ignored. As Brennan J (as he then was) pointed out in Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634:
“Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice”. But as pointed out by Brennan J at p 645: “the Administrative Appeals Tribunal may depart from policy if there are cogent reasons to the contrary. If a policy adds qualifications which are not part of a statute then they exist cogent reasons to depart from it”.
24. The Applicant’s case amounts to a submission that by its work the ADB advances the interests of Australia. The Applicant during the last five years has been employed on contract by the ADB to look after its interests in a number of developing countries and at the same time advance the interests of those countries. Australia is a large and influential stakeholder in the ADB and by advancing the interests of that body the Applicant has as a result engaged in activities beneficial to the interests of Australia.
25. In support of this argument the Applicant pointed to a white paper on the Australian Governments Overseas Aid Programme which stated, inter alia, that Australians peace and security is inextricably linked to that of our neighbours and that by helping to reduce poverty and promote sustainable development, the aid programme is an integral part of Australia’s foreign policy and security agenda. Similarly the current Minister for Foreign Affairs has stated that the alleviation of poverty and the promotion of sustainable development is in the national interest. (A Downer, Australian Institute and International Affairs, Policy Commentary, July 2006). It follows therefore, according to the Applicant, that by working for the ADB in auditing the use made of its advances to developing nations and by assisting those nations in formulating proposals for the provision of funding by the ADB the Applicant has acted so as to benefit Australia.
26. To my mind the argument for the Applicant is too remote. As was pointed out in Re Tinamisan and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 439 at 355:
“there must be a clear nexus between the broad public interest and the benefits that accrue to Australia and the specific activities of the person seeking the exercise of the ministerial discretion”.
27. In this matter I cannot see any nexus between the Applicant’s activities as a contractor to the ADB and objective benefits accruing to Australia. In reality he is in the same position as the Applicant in Re Khan and Minister for Immigration and Multicultural Affairs (unreported tribunal decision No. 12186, 5 September 1997). In that case the Applicant was described by DP Chappell as an “International Civil Servant” unable to favour the interests of one state over another. Here the Applicant is a contractor to the ADB and any benefits accruing to Australia by his activities are too remote to meet the test in the legislation.
28. Having seen and heard the Applicant and having regard to his evidence and the evidence of his wife and the other witnesses called by him I am convinced he is a person who Australia should seek to have as a citizen. If I had an unfettered discretion I would have exercised it in his favour but I do not have that unfettered discretion.
29. The decision under review is affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed:
[sgd] [Mwela Kapapa]
.....................................................................................Associate
Date/s of Hearing 4 July 2007
Date of Decision 20 July 2007
Solicitor for the Applicant Kessels Goddard & Adjuria
Solicitor for the Respondent DLA Phillips Fox
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