Mushahwar and Minister for Immigration and Multicultural Affairs - [2000] AATA 1132

DECISION AND REASONS FOR DECISION [2000] AATA 1132

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/940

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SONIA MUSHAHWAR
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date21 December 2000
PlaceSydney

Decision      The decision under review is affirmed.
  ..............................................
  Senior Member
CATCHWORDS
IMMIGRATION – citizenship – qualification criteria – period in Australia as permanent resident less than two years in the past five - exercise of Minister's discretion – hardship

Administrative Decisions (Judicial Review) Act 1977 s 5(2)(f)
Australian Citizenship Act 1948 s 13

Beadle v Director-General of Social Security (1985) 7 ALD 670
Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

Mr M J Sassella, Senior Member

APPLICATION

On 24 February 2000 Sonia Mushahwar ("the Applicant") lodged with the Minister for Immigration and Multicultural Affairs ("the Respondent") an application for grant of Australian citizenship (T4).
On 31 May 2000 a delegate of the Respondent decided to refuse the Applicant's application for grant of Australian citizenship (T1).
An officer in the Department of Immigration and Multicultural Affairs wrote to the Applicant on 7 June 2000 notifying her of the rejection of the application (T1).
On 16 June the Applicant lodged an application for review with the Tribunal (T1).
At the hearing the Applicant was represented by her husband, Mr Shuaibi, and the Respondent was represented by Mr Muthalib.
The statement provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 was taken in as evidence (TD1) in addition to the following material:
Exhibit No Description
A1 R1 "How to apply for a grant of Australian citizenship" information booklet from the Department of Immigration and Multicultural Affairs Letter with enclosures from Mr Muthalib to the Tribunal dated 29 August 2000

LEGISLATION

Section 13 of the Australian Citizenship Act 1948 ("the Act") outlines the qualification criteria for the grant of Australian citizenship. As relevant it provides:
"Grant of Australian citizenship
13. (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 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 as basic knowledge of the English language;
(h) 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.
…
(4) For the purposes of the application of subsection (1) in relation to an applicant for the grant of a certificate of Australian citizenship
…
(b)   subject to paragraph (a), the Minister may, in the Minister's discretion:
…
(ii)treat a period ending before the period of 5 years referred to in paragraph (1)(3), being a period during which the applicant was present in Australia as a permanent resident, as a period within that period of 5 years;
…"

FACTS

The Applicant was born in Israel on 1 September 1972. She was in possession of travel documents issued by the Palestinian National Authority. She first arrived in Australia on 3 May 1994 and had permanent resident status upon entry, that status having been conferred on 17 February 1994 (T5). She married Ashraf Shuaibi on 16 December 1994. She and her husband were out of Australia between the dates of 22 January 1995 and 16 November 1998 inclusive. She has a daughter, born in the USA on 12 September 1996.
Ms Mushahwar mentioned in her citizenship application that she wished to leave Australia for a year to take up a work position. She had been offered a position to run from 3 July 2000 to 31 June 2001 (T4). The offer was conditional on her obtaining Australian citizenship. The letter of offer was dated 15 February 2000. It was signed by Harry Donsbach, regional project manager with Otto Benecke Stiftung e. V., a German foundation. The job on offer was a position as regional project officer. The letter canvassed remuneration arrangements and other employment benefits and terms and conditions. As regards the need for an Australian passport the letter said:
"…
As you are aware of, your employment with OBS Foundation is depend[ent] on obtaining your Australian citizenship (Passport). Your movement and travel while pursuing your work between our offices in Israel, Jordan, the Palestinian Territories, and Syria is restricted with the travel document that you are currently hold[ing] due to the political situation in the area.
…" (T4, p52)

On 25 February 2000 Mrs Mushahwar wrote to the Respondent seeking to have the application expedited (T5). She mentioned that both she and her husband were applying for Australian citizenship because they have two children, one who was three years of age at the time and another four weeks old. She wanted her husband to accompany her to take up her job. He would take care of the family. She asked to be considered under the exception for "residence in Australia before the 5 year period prior to this application" and that her husband be considered under the exception for "legally married spouse of a person who is applying for Australian citizenship". She submitted that they should be dealt with under these exceptions because of the significant hardship and disadvantage that would result to them as a family if Australian citizenship were not granted.
On 17 May 2000 the Applicant wrote again to the Respondent asking to have the application expedited (T6).
On 31 May 2000 a delegate of the Respondent decided to refuse Ms Mushahwar's application for Australian citizenship (T1). He provided full, written reasons. These were as follows:

Section 13(1)(d) and (e) of the Australian Citizenship Act 1948 require that, for an application for the grant of a certificate of Australian citizenship to be granted, an applicant must have been present in Australia as a permanent resident for periods totalling at least two years out of the five years immediately before applying, and for one year in the two years immediately before applying. The Applicant (and her husband) did not meet one requirement. At the date of application, 23 February 2000, they had spent only 463 days (ie 1.27 years) in Australia since 23 February 1995, ie within the previous five years.
The Applicant sought to invoke the discretion in s 13(4)(b)(ii) of the Act which can permit the counting of permanent residence earlier than five years before the date of the application towards meeting the "two years in five" requirement in s 13(1)(e). The Applicant had spent 264 days in Australia as a permanent resident before 23 February 1995.
Even if the delegate exercised this discretion, Ms Mushahwar would not meet the residence requirement.
The discretion would usually be exercised only in certain situations of hardship or disadvantage, namely any of the following:
an applicant can demonstrate that he/she has been refused employment solely on the grounds that the employment is restricted only to Australian citizens and that alternative sources of employment are not reasonably available to him/her; or
an applicant would be excluded from travelling internationally because he/she cannot obtain a passport or because he/she is excluded from travelling with immediate Australian family by reason of the nationality of the passport/travel document he/she holds or is entitled to hold; or
an applicant would not otherwise be eligible to represent or be selected to represent Australia in a national representative team/group because Australian citizenship is a pre-requisite to selection. This should be applied uniformly to all sports. People should be of international standard and able to demonstrate that their selection for a national team depends solely upon being granted citizenship.
The Applicant and her husband did not meet the usual policy requirements for exercise of the discretion. They had not shown that they would be excluded from travelling internationally because they cannot obtain a non-Australian passport. They could not show that employment was restricted to Australian citizens and that other employment was not available. Career advancement overseas was not a valid reason for exceptional grant of Australian citizenship.

THE APPLICANT'S EVIDENCE

At the hearing Ms Mushahwar explained why she was applying for Australian citizenship. She wished to become eligible for the grant of an Australian passport; she wished to be able to travel internationally; and she wanted to be an Australian citizen.
The position with Otto Benecke Stiftung e. V. was described by the Applicant as a good opportunity for her. It would be good for her career development. The salary would be $A85,000. It would be beneficial for the family for her to obtain this job.
The Applicant was disappointed with the decision under review. She thought that the Minister's delegates would be more flexible. She wanted her application for grant of citizenship to be treated as a hardship application. She needs to travel internationally but her current travel document from the Palestinian National Authority is not recognised internationally.
The Applicant intends to return to live in Australia after doing the work offered her by Otto Benecke Stiftung e. V.
Mr Muthalib cross-examined Ms Mushahwar on behalf of the Respondent. He ascertained that the Applicant was currently unemployed. She had worked as a data entry officer in Australia in 1994-1995. In 1995 she went to Palestine to work as a project officer in the office of a non-government organisation. She also spent a month in the USA. She had no difficulty entering and leaving the USA with her Palestinian travel document. She would have trouble moving into or out of Lebanon and Syria with the documents she has. Otto Benecke Stiftung e. V. want the Applicant to do some work in those two countries.
Ms Mushahwar told Mr Muthalib that she had applied for the job in question in January 2000. She had looked for a job she could do in Australia but her overseas contacts resulted in her becoming aware of the job with Otto Benecke. In the Applicant's view this would be a better paid, more rewarding job than the jobs available in Australia. She had said much of this in her letter at T5 dated 25 February 2000. She said the offer provided an opportunity that would be a crucial turning point in her employment experience and her life.
When Ms Mushahwar sought the job the employer had asked if she could travel flexibly. She had said she could because she was seeking Australian citizenship and an Australian passport. In paragraph 7 of the Applicant's letter to the Respondent dated 25 February 2000 (T5) she had asked that the Respondent treat her application as within the hardship and disadvantaged category.
Mr Muthalib asked Ms Mushahwar about the letter to her from her prospective employer dated 15 February 2000 (T4, p51). That letter set the commencement date as 3 July 2000. That date had passed by the time of the hearing. Ms Mushahwar explained that the employer was prepared to leave the offer open for a period, but not indefinitely. The employment would run for one year from whenever it commenced.
Mr Muthalib called the Tribunal's attention to the Applicant's letter to the Respondent dated 17 May 2000 in which she had written that if she had to postpone her July travel for more than a month she would "lose everything". Mr Muthalib pointed out that she had had to delay her travel but that the job was still open to her. She had not in fact "lost everything". Ms Mushahwar confirmed that she had believed what she wrote to be true at the time of writing.
Mr Muthalib put to the Applicant that the employer was actually interested in hiring a person who could travel around the Middle East. The employer did not require that the successful applicant must have an Australian passport. An Australian passport was mentioned by the Applicant and was attractive to the employer because of its wide acceptance.
The Tribunal clarified that the Respondent had not yet assessed whether the Applicant met the non-residential requirements in s 13 of the Act. These include such requirements as being of good character (s 13(1)(f)), a basic knowledge of the English language (s 13(1)(g)) and an adequate knowledge of the responsibilities and privileges of Australian citizenship (s 13(1)(h)). This could require an additional three or more months. The grant of the certificate of citizenship also requires participation in a citizenship ceremony. These are arranged by local government authorities. The Respondent has no control over when or how often they are held.
THE RESPONDENT'S FINAL SUBMISSION
Mr Muthalib argued that the decision should be affirmed. The Applicant's desire for career advancement and better prospects would not be a sufficiently cogent reason to depart from the policy described above. The Applicant needed only to remain a little longer in Australia in order to satisfy the residence requirements. If she remained in Australia she would satisfy the requirements on 16 November 2000. He argued also that there would be time required for the assessment of the additional criteria in s 13 of the Act and that the citizenship ceremony might not be held for quite some considerable time, even if the discretion could be exercised.
ADDITIONAL EVIDENCE SUPPLIED BY THE RESPONDENT
The Tribunal made a number of requests of Mr Muthalib for additional material. Mr Muthalib, as is usual, cheerfully and efficiently assisted. Exhibit R1 contains information from the Respondent on the breadth of recognition of the Palestinian travel document held by the Applicant. This material confirmed the earlier evidence that the Palestinian National Authority passport was not recognised in Syria or Lebanon.
THE TRIBUNAL'S FINDINGS
The Tribunal finds that the Applicant is unable to meet the requirements of s 13(1)(e) of the Act. At the date of her application for the grant of Australian citizenship, 23 February 2000, she had spent only 463 days in Australia since 23 February 1995, ie within the previous five years. To satisfy this requirement she would have had to spend 730 days in Australia between 23 February 1995 and 23 February 2000.
The Applicant sought to take advantage of the Minister's discretion in s 13(4)(b)(ii) of the Act. This provision permits the Minister to treat a period ending before the period of five years referred to in s 13(1)(e) as a period within the five years, provided the Applicant was present in Australia at that time as a permanent resident. However, the Tribunal finds that, even if the Applicant is extended the benefit of this discretion, she still failed to satisfy s 13(1)(e) on 23 February 2000. She would at best be taken to have been in Australia for only 727 days within the relevant five years, not the required 730 days.
These findings agree with the findings and the decision as made by the Respondent. However, the Respondent went further and explained why, even if the discretion in s 13(4)(b)(ii) of the Act was not applicable in this case, had it been available the Respondent would not have chosen to exercise it. The Applicant did not fit any of the three grounds for exercise of the discretion as set out in departmental policy. These grounds are described fully above in paragraph 12. In summary the discretion may be exercised where:

Employment has been denied to a person because the person is not an Australian citizen; or
The person cannot travel internationally because the person cannot obtain a passport or travel document; or
The person cannot represent Australia in a national representative team solely because the person is not an Australian citizen.

In Exhibit A1, form A 1027I issued by the Department of Immigration and Multicultural Affairs, there is a postscript to the statement of policy which reads:

"…
(If you believe that you meet this policy or there are special circumstances that warrant consideration outside this policy, you may attach a statement to your application or discuss it during your citizenship interview.)"

The Tribunal sought from Mr Muthalib any material that might be available to explain the derivation and rationale for the three stated bases for the exercise of the discretion in s 13(4)(b)(ii). The Tribunal was interested in seeing whether any such derivation or rationale might be interpreted to apply to an applicant in the position the Applicant had found herself occupying. Mr Muthalib was unable to locate any printed material or any departmental expert. It is likely that the policy has evolved gradually and that a specific case, or class of cases, has prompted the recognition of each one of the stated bases.
The Tribunal notes, of course, the postscript and commends the Department of Immigration and Multicultural Affairs for stating that it will consider an individual case on its merits. From an administrative law perspective this is most sensible. A decision denying the benefit of the exercise of a discretion to a person can under general administrative law principles, and under s 5(2)(f) of the Administrative Decisions (Judicial Review) Act 1977, be challenged as unlawful if it is the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.
In the present context an applicant would, under the policy, have to show special circumstances to obtain the benefit of the discretion. The Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 said (at 3):
"…
An expression such as 'special circumstances' is by its very nature incapable if precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
…"

This statement was endorsed by the full Federal Court in Beadle v Director-General of Social Security (1985) 7 ALD 670.

The Tribunal considers that Ms Mushahwar's case could well have disclosed special circumstances. The particular position for which Ms Mushahwar had successfully applied was especially appropriate for her, given her background and interests. It was a position that required her to be able to enter and leave a number of Middle Eastern nations, including Lebanon and Syria. She could not do this with the passport issued by the Palestinian National Authority, whereas she could with an Australian passport. There was no evidence before the Tribunal to suggest that the Applicant might obtain a passport from any country other than Australia or the Palestinian National Authority. The Applicant was an impressive person who would appear an excellent representative of Australia in the apparently humanitarian work done by the foundation that was seeking her services. The Tribunal considers that this coincidence of factors could well take Ms Mushahwar's case outside the usual run of cases. There would be few other applicants for citizenship in quite the same position as Ms Mushahwar. The Tribunal also observes that the apparent rationales of all three accepted bases for exercise of the discretion have some possible application in this case.

The Applicant's employment was conditional on her obtaining Australian citizenship (and an Australian passport). The Tribunal recognises, however, that this basis for exercise of the discretion is probably meant to apply to employment within Australia.
The Applicant's freedom to travel internationally is impeded because of the travel document she has.
The Applicant wishes to join an international "team" which she can join, in her situation, only if she can obtain Australian citizenship and travel documents. However, the Tribunal recognises that this basis is administered as applying only to sporting teams.

The Tribunal considers that, in its statements on whether the discretion would have been extended to Ms Mushahwar had she spent several more days in Australia, the Respondent should have addressed whether Ms Mushahwar might have satisfied the criteria for special circumstances justifying the exercise of the discretion.
CONCLUSION
The Tribunal is satisfied that the Respondent's interpretation and application of the law in this case was correct and that the decision under review was the only possible decision on the facts.
DECISION
The decision under review is affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  24 August and 4 September 2000

Date of Decision  21 December 2000
Counsel for the Applicant  Mr A Shuaibi
Representative for the Respondent        Mr I Muthalib